U.S. v. Gandolfo

• Decision Date: 04 August 1978
• Docket Number: No. 77-5139,77-5139
• Citation: 577 F.2d 955
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GANDOLFO and Harry Maran Ritter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 955

577 F.2d 955

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GANDOLFO and Harry Maran Ritter, Defendants-Appellants.

No. 77-5139.

United States Court of Appeals, Fifth Circuit.

Aug. 4, 1978.

David A. Demers, St. Petersburg, Fla. (Court-appointed), for Gandolfo.

Harry Maran Ritter, pro se.

Stan Jaskiewicz, Jr., Charleston, S. C. (Court-appointed), for Ritter.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Gary J. Takacs, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before WISDOM, TJOFLAT and VANCE, Circuit Judges.

VANCE, Circuit Judge.

This is a review by direct appeal of judgments of conviction and sentence following jury verdicts of guilty of Thomas Andrew Gandolfo and Harry Maran Ritter. Defendants were convicted on both counts of a two-count indictment of armed robbery of a federal savings and loan association in violation of 18 U.S.C. § 2113(a) and (d). Each was sentenced under the second count only to imprisonment for 15 years. We affirm as to Gandolfo. As to Ritter, we reverse with directions to dismiss the indictment.

Because our holding centers on its sufficiency, a detailed examination of the evidence is required.

THE FACTS

On August 29, 1975 the Naples Federal Savings and Loan in Bonita Springs, Florida was robbed of $4,291 by two male caucasians wearing black knitted ski masks and gloves. One of the men was of "medium build" and wearing camouflagic pants, a shirt and carrying a blue automatic handgun. The other was "heavy-set," "stocky," with "very large arms," wearing a camouflagic jumpsuit and carrying a double-barreled, side-by-side shotgun.

The two men entered the "bank" at between 9:28 and 9:30 A.M. As the man carrying the pistol entered he said: "This is a hold-up. Don't anybody move" or words to that effect. He directed the tellers to fill pillowcases with their money and then vaulted over the tellers' counter and went through the money drawers himself. The man carrying the shotgun dropped his weapon as he entered. After retrieving his shotgun, he went to the manager's office and directed the branch manager, Mr. Starr, to come out of his office. Witnesses reported that each time the shotgun was pointed at him, Mr. Starr would raise his hands up over his head.

Mr. Starr had been able to activate the silent alarm which notified the police and set the cameras into operation. Pictures taken by the automatic cameras during the robbery clearly show the two robbers. Both were wearing ski masks, tennis shoes and gloves. Both appeared to be of medium height. One carried an automatic pistol, wore a dark shirt over what appears to be camouflagic trousers and was of medium weight. The other carried a sawed-off shotgun, wore a camouflagic coverall and was somewhat heavier.

The robbery was completed within a few minutes and the robbers sped off in a Chevrolet Chevelle automobile, which had been reported stolen just prior to the robbery. Within an hour after the robbery the vehicle was discovered approximately one and one-half to two miles from the savings and loan. An examination revealed that the entire cylinder door lock mechanism was missing from the passenger door.

Prior to the August 29 robbery Gandolfo had significant contacts with several individuals who were witnesses at trial.

In January, 1975 Gandolfo met with one Neal Branch in a lounge in Fort Meyers, Florida, and informed Branch that he (Gandolfo) was a bank robber. Shortly thereafter he told Branch that he was going to "do a number" and wanted Branch to "pick him up" in Bonita Springs. ¹ Branch testified that some five weeks after their initial meeting, Gandolfo introduced him to a Harry Ritter, but he could not identify Ritter in the courtroom. On that day Gandolfo showed Branch an A.R.15 gun, a shotgun with a barrel about 24 inches long, some greenish, spotted jumpsuits, roll-down dark ski masks, and some brown cotton work gloves, all of which were in the trunk of his car. Ritter was not shown to be present at this viewing. During one of several meetings thereafter, Branch and Gandolfo discussed the different ways of stealing an automobile. One such way was by "punching the lock out of the door" and "getting keys made."

In early August, 1975, Gandolfo introduced Ritter as his partner to Harold "Boots" Whidden. A week or two later he and Ritter went by Whidden's house and Gandolfo asked Whidden if he would drive a car in a bank robbery. With Ritter present Gandolfo showed Whidden a gun, and some green or grey coveralls, which were in the trunk of a car.

On August 28, 1975, the day before this bank robbery, Gandolfo met with a Thomas Brantley. On that date he offered Brantley $10,000 (for what the record is not clear). Brantley asked Gandolfo where he would get that kind of money. Gandolfo replied that he was going to rob a bank.

On or about that same date, a white male had the A-1 Lock and Key Shop in Naples, Florida make a key for a General Motors car door lock which he had in his possession. The locksmith could not identify either Gandolfo or Ritter, but described the man for whom the key was made as "five feet eight inches to five feet ten inches, light brown or brown hair, and of medium build."

Also, on the 28th of August a man registered for two persons at the Fort Meyers Beach Holiday Inn. The party of two checked in under the name of Harry Ritter, checked out on the 29th at approximately 8:33 A.M. and re-registered at the motel at 10:05 A.M. They subsequently checked out on the 30th at 5:38 A.M. Ritter could not be identified in the courtroom by the motel clerk but was described by the clerk as "five feet ten inches to six feet, average build, with sandy colored hair."

An F.B.I agent investigating the robbery determined that it was 13.2 miles from the savings and loan association to the Holiday Inn and that the distance could be travelled, with a stop at the point where the stolen car was dropped off, in 20 minutes.

A Mr. Shera testified that in late August, 1975, he encountered Mr. Gandolfo, whom he had known previously, in the lounge of the same Holiday Inn. With Gandolfo was a man who was introduced by Gandolfo as Harry Ritter. Shera could not identify Ritter in the courtroom.

On September 9, 1975, following the robbery, Gandolfo told an F.B.I. agent that he knew who had committed the robbery, that the car was stolen by removing the lock mechanism from the door, and that if he were to rob a bank, he would wear "jumpsuits, ski masks and gloves; select a bank in an isolated area; and would 'hole up' in a room or apartment for a day or two" following the robbery.

Beginning in September, 1975, Gandolfo and Ritter lived for almost two months in an apartment with a Christine Audrey Stewart and an Ava Cooper in Charleston, South Carolina. In late September, Gandolfo told Mrs. Stewart about a bank robbery in Florida in which his shotgun fell "apart when he walked in the door of the bank." His story of the robbery also included Gandolfo related the same story to Mrs. Stewart's boyfriend, Kenneth Ducker. During October, 1975, Ducker saw Gandolfo in possession of two different weapons, a pistol and a sawed-off shotgun. In late October, 1975, unknown to Gandolfo, Ducker took the shotgun, concealed it from him, and later gave it to the F.B.I. The shotgun was identified as one purchased by a Kathy E. Scully on December 18, 1974. Scully was a former girlfriend of Gandolfo.

his telling Mrs. Stewart that while he was in the bank a man "kept putting his hands up and down," that he had a "partner," and that he sawed off the barrel of a shotgun at a motel in Florida.

It was stipulated that Ritter had been receiving unemployment payments from March 1, 1975 through August 30, 1975. On September 5, 1975 Ritter contacted a Mr. Wroblewski, a Fort Meyers bail bondsman, and paid Wroblewski $1,250 in cash, to secure the release, on bail, of Kathy Scully.

THE EVIDENCE AGAINST RITTER

In deciding the sufficiency of the evidence on appeal, we must consider the evidence in the light most favorable to the government. Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942).

The test by which we must measure the sufficiency of the evidence is established:

(I)n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused's innocence. . . . (W)hether the evidence be direct or circumstantial, the matter of the defendant's guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt. United States v. Warner, 441 F.2d 821, 825 (5th Cir. 1971)

To affirm Ritter's...