U.S. v. Grubczak

• Decision Date: 16 June 1986
• Docket Number: D,No. 807,807
• Citation: 793 F.2d 458
• Parties: UNITED STATES of America, Appellee, v. Jeffrey GRUBCZAK, Defendant-Appellant. ocket 85-1409.
• Court: U.S. Court of Appeals — Second Circuit

Page 458

793 F.2d 458

UNITED STATES of America, Appellee, v. Jeffrey GRUBCZAK, Defendant-Appellant.

No. 807, Docket 85-1409.

United States Court of Appeals Second Circuit.

Argued March 18, 1986.

Decided June 16, 1986.

Steven M. Kaplan, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Stuart E. Abrams, Asst. U.S. Atty., of counsel), for appellee.

Judd Burstein, New York City, for defendant-appellant.

Before PIERCE, MINER and ALTIMARI, Circuit Judges.

MINER, Circuit Judge:

Jeffrey Grubczak appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Owen, J.) following a jury trial in which he was found guilty on all counts of a three-count indictment charging him with: (1) conspiracy to rob money belonging to federally insured banks, 18 U.S.C. Sec. 371; (2) armed robbery and aiding and abetting the armed robbery of bank funds, 18 U.S.C. Secs. 2113(d), 2; and (3) receipt and possession of money belonging to a federally insured bank knowing it had been stolen, and aiding and abetting the same, 18 U.S.C. Secs. 2113(c), 2. Defendant was sentenced to concurrent terms of five years' imprisonment on count 1, twenty-five years' imprisonment on count 2 and ten years' imprisonment on count 3. He also was fined a total of $750,000 and ordered to pay a special assessment of $150. Defendant's principal contention on appeal is that the evidence at trial was insufficient to support the jury's verdict with respect to aiding and abetting the armed robbery of bank funds. We affirm.

I. BACKGROUND

In the early morning hours of April 29, 1985, a group of armed bandits broke into the offices of the Wells Fargo Armored Services Corporation ("Wells Fargo") on West Street in Manhattan. The robbers apparently had entered the building by cutting through a cement block wall into the second floor office area. There, they waited until approximately 1:15 a.m. when four armed Wells Fargo guards had completed a search of the building. After deactivating the alarm system and opening the main vault, the robbers quickly subdued the guards, who were then disarmed and handcuffed to a forklift. None of the guards was able to identify the three gunmen, who were wearing masks.

The robbers removed approximately $7.9 million in cash from the vault and loaded the money into the back of a Wells Fargo armored car. Fleeing in the armored car, the robbers soon realized that they had left behind the body key. That key was necessary to open the car's back compartment where they had placed the money. The robbers proceeded to a New York City Highway Department storage lot near the Fulton Fish Market in lower Manhattan, where they parked the armored car. There, they were seen by Allan Merritt, a truck driver who had parked his truck next to the Highway Department lot. Sometime after 1:30 a.m., Merritt observed defendant walking with another person in the vicinity of the storage lot. Merritt knew defendant from working in the area and made the observation at a distance of less than five feet.

At approximately 2:00 a.m., Merritt heard a loud banging noise coming from the direction of the Highway Department lot. He then saw defendant hitting the side of the Wells Fargo truck with what appeared to be a sledge hammer or ax. Merritt simultaneously observed five or six individuals who seemed to be serving as lookouts. After about ten minutes, a police car approached the area, causing defendant and the others to scatter. A short time later, Merritt saw the group return; he witnessed defendant and another resume the battering of the armored car. Eventually, Merritt saw that the door had been opened, and he watched as the two unloaded packages from the armored car into a white van. At approximately 3:30 a.m., he saw defendant and another individual leave the lot in the white van. The lookouts also departed, leaving the armored car behind. Government agents recovered the damaged car later that morning; although none of the stolen money was recovered, an unidentified discarded revolver was found in the Wells Fargo vehicle.

Testimony at trial established that defendant's life-style changed substantially after the robbery. Friends observed that he was better dressed and heard him brag that his "ship had come in." Although he had always been short of money, he told a friend in early May that he had just flown first class to Chicago and had taken a limousine to the airport. While in Chicago, defendant left approximately $5,400 cash with his mother. He also had deposited $2,000 into his bank account and told Merritt that he had just bought a car. Less than one year earlier, defendant had listed on a financial aid form that his net worth was zero and that his anticipated income was less than $2,200.

On May 29, 1985, an arrest warrant was issued charging defendant with participating in the April 29th Wells Fargo robbery. Officers arrived at defendant's apartment that evening, where they observed a number of items. One of the officers noticed a number of small explosive devices as well as a pair of large red-handled bolt cutters of the type believed to have been used during the robbery. A second officer, Special Agent Philip Lewzader, noticed ten to twelve credit cards, bound with a rubber band, on a couch. The cards were not in defendant's name. Next to the cards was a black zippered case approximately five inches long and one and one-half inches wide. Based on nine years' experience with the FBI, including service with the Joint Bank Robbery Task Force, Lewzader immediately suspected that the case contained lock-picking tools. This belief was supported in part by his knowledge that defendant had been charged with burglary in the past. Lewzader's suspicions were heightened when he picked up the case and was able to discern its sound and feel. When opened, the case did in fact contain the suspected items.

When informed at the time of his arrest that the police were going to obtain a search warrant for his apartment, defendant told one of the arresting officers that they were going to "find about $8,000 there" which defendant explained came from his being "a good saver." Following the arrest and issuance of a search warrant, agents seized $8,900 in $10 bills stacked and bound by a rubber band. They also discovered a Federal Reserve Bank money wrapper of the type used to wrap some of the stolen money.

Most of this evidence was introduced at trial. In addition, the government submitted evidence of defendant's attempt to obstruct justice by suborning the perjurious alibi testimony of two witnesses. Both of those witnesses, however, ultimately testified for the government.

As part of his defense case, defendant called Special Agent Lewzader, who testified that an investigation was unable to establish that the bolt cutters found in defendant's apartment had cut the lock on the Highway Department lot's gate. Lewzader also testified that none of the latent fingerprints found at the crime scene could be identified as defendant's. Other defense witnesses were Michael Sentina and Alan Smaltz, whose testimony was used to explain some of the items seized from defendant's apartment. Sentina explained that defendant made use of the bolt cutters in his work as a handyman; Smaltz testified that defendant had been doing carpentry work and some locksmithing, thereby suggesting an explanation for the lock-picking tools.

II. DISCUSSION

Defendant urges three grounds for reversal of his conviction, only one of which requires extended discussion. First, defendant argues that the district court erroneously denied his motion to suppress the lock-picking tools. According to defendant, Judge Owen erred in finding that the lock-picking tools were properly seized on the basis of the plain view exception to the fourth amendment's warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971) (plurality opinion). That doctrine consists of three elements: First, the officer must be lawfully on the premises. Second, the discovery of the evidence must be inadvertent. Third, the incriminating nature of the evidence must be immediately apparent. United States v. $10,000 in United States Currency, 780 F.2d 213, 217 (2d Cir.1986).

Defendant's only claim here is that the incriminating nature of the lock-picking case was not immediately apparent. The predicate for this argument is that Agent Lewzader did more than just look at the case; he testified that he picked it up and shook it. Regardless of the applicability of the "plain feel" version of the plain view doctrine to the facts of this case, see United States v. Ocampo, 650 F.2d 421, 429 (2d Cir.1981) (approving "plain feel" concept where agents were able to discern currency through paper bag); United States v. Diaz, 577 F.2d 821, 824 (2d Cir.1978) (same, where contents of paper bag inside a filled toilet tank were likely soon to deteriorate), there simply is no merit to defendant's claim that the plain view doctrine here was misapplied. Indeed, defendant has mischaracterized the facts supporting a finding of plain view. While Agent Lewzader did pick up the case and undertake a tactile examination, his unequivocal testimony was that he had concluded that the case contained lock-picking tools before he picked it up. His additional survey served only to support his already formed conclusion as to the case's contents. That conclusion, predicated on his lengthy experience and his knowledge that defendant had been charged with burglary in the past, plainly supported his probable cause belief that the case was connected with criminal activity. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983); United States v. $10,000 in United States Currency, 780 F.2d at 217 (" '[T]he incriminating nature of an object is generally deemed "immediately apparent" where police have probable cause...