U.S. v. Mariani

• Decision Date: 19 July 1976
• Docket Number: D,No. 898,898
• Parties: UNITED STATES of America, Appellee, v. Ralph MARIANI, Appellant. ocket 76-1075.
• Court: U.S. Court of Appeals — Second Circuit

Page 915

539 F.2d 915

UNITED STATES of America, Appellee, v. Ralph MARIANI, Appellant.

No. 898, Docket 76-1075.

United States Court of Appeals Second Circuit.

Argued April 5, 1976.

Decided July 19, 1976.

Stephen Flamhaft, Brooklyn, N.Y., for appellant.

Cheryl M. Schwartz, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (David G. Trager, U.S. Atty., Josephine Y. King, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before ANDERSON, MULLIGAN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Ralph Mariani appeals from a judgment of conviction of aiding and abetting a bank robbery by force, violence or intimidation (Count One) and of aiding and abetting an armed bank robbery (Count Two) in violation of 18 U.S.C. §§ 2113(a), (d) and 2, entered in the United States District Court for the Eastern District of New York, Platt, J., after a jury trial. Appellant was sentenced to consecutive terms of eight years imprisonment on each count; execution of the sentence on Count Two was suspended, however, and appellant was placed on probation for five years on that count.

Mariani raises four claims of error on appeal: (1) that the evidence was insufficient to sustain a finding of guilt beyond a reasonable doubt; (2) that his prior narcotics conviction should not have been admitted into evidence because its prejudicial impact outweighed its probative value; (3) that it was reversible error to allow the government to impeach his credibility as a witness with bullets unlawfully seized from his car; and (4) that the district court abused its discretion in denying appellant's motion for severance. Finding his third claim meritorious, we reverse and remand for a new trial.

Initially we must observe that, unnoticed by either side, there was clear error in sentencing that would have required correction however we might rule on appellant's other arguments. It is settled in this Circuit that while simultaneous judgments of conviction under more than one subsection of the Federal Bank Robbery Act may be entered, "simultaneous sentences, whether concurrent or consecutive, under subsections (a) and (d) (of 18 U.S.C. § 2113) are improper." United States v. Stewart, 523 F.2d 1263, 1264 (2 Cir. 1975) (per curiam ). See also United States v. Stewart, 513 F.2d 957 (2 Cir. 1975); United States v. Pravato, 505 F.2d 703 (2 Cir. 1974); Gorman v. United States, 456 F.2d 1258 (2 Cir. 1972). The district court thus erred in sentencing Mariani under both subsection (a) and subsection (d).

I. Sufficiency of the Evidence.

Appellant first contends that the government's evidence at trial was insufficient as a matter of law to sustain his conviction. Since we conclude that Mariani is entitled to a new trial because of prejudicial error in an evidentiary ruling (Part II-B, infra ), we consider this sufficiency question only insofar as it pertains to appellant's demand for a judgment of acquittal. United States v. Singleton, 532 F.2d 199, 201 (2 Cir. 1976). In so doing, of course, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), taking into account the evidence presented by appellant in addition to that offered by the government. United States v. Johnson, 513 F.2d 819 (2 Cir. 1975); United States v. Pui Kan Lam, 483 F.2d 1202 (2 Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); United States v. Arcuri, 405 F.2d 691 (2 Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969).

Acting on an informant's tip that a stolen red and white gypsy taxicab would be used to rob a particular bank on August 25, 1975, detectives from the Major Case Squad of the New York City Police Department kept that vehicle under surveillance. During that afternoon, the detectives saw two Hispanic males enter the cab which was parked on Argyle Road in Brooklyn, about ten blocks from the bank. Appellant Mariani sat in the driver's seat while his co-defendant, Felix Acevedo, sat in the right rear seat. The detectives noted that Acevedo had a large "Afro" hairstyle. Briefly pausing twice at the curb, the cab proceeded towards the bank, slowed down and passed by it, only to return to the bank about five minutes later. Mariani, the driver, double parked in front of the bank and kept the engine running.

Acevedo, carrying a brown manila envelope, left the cab, twice looking back at it before he entered the bank. When he reached the teller's window, he pointed a short barrelled revolver at the teller and instructed her to fill the manila envelope with money. Acevedo left the bank with the envelope filled with money and the gun, only to be arrested a short distance away. The police took custody of the envelope, Acevedo's sunglasses, Afro wig, and gun. The gun was loaded and operable.

Shortly after Acevedo entered the bank, Mariani drove away at a high rate of speed, traveling down two one-way streets in the wrong direction, finally colliding with another car. He abandoned the cab and successfully eluded the police. Acevedo was taken into custody by special agents of the Federal Bureau of Investigation. He signed a statement admitting his attempt to rob the bank and also made an oral statement about Mariani's role in the effort; this latter statement was not offered in evidence because of possible complications arising from the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

That evening a police detective and an FBI agent waited for three hours in Mariani's apartment to arrest him. At 8 P.M. they left the apartment and stationed themselves outside the building until almost midnight, when they re-entered the apartment and arrested Mariani.

Mariani gave the FBI agents written permission to search his car, which was parked on the same block where he was first seen entering the cab. Questioned at FBI headquarters, he at first denied being involved in the robbery but later signed a statement to the contrary, after being advised of his constitutional rights. ¹ Upon Mariani's subsequent allegation that the statement was involuntary, the district court ruled that the claim of coercion was unfounded.

Mariani testified in his own behalf. He stated that although he had been a drug addict in 1969 and had pleaded guilty to possession, he had become drug free through a rehabilitation program connected with his probation. In 1975 he pleaded guilty to a possession charge but claimed that he was innocent of that offense and had had no drugs in his possession but was in the company of a person who did. He stated that he entered a guilty plea as a "quick way out" and, in fact, did receive only a $100 fine as a sentence. As of the day of the robbery, Mariani had been unemployed for five months. He testified that Acevedo had agreed to take Mariani to where Mariani's car was parked, 15-20 blocks from his home, in order for Mariani to drive to an appointment with his unemployment officer but that Acevedo first wanted to "cop some dope." The men entered the cab, which Mariani said was parked in front of Mariani's apartment building on East 19th Street, and Acevedo drove the gypsy cab to a location where he evidently "shot some drugs." Because Acevedo returned to the car nodding and staggering, Mariani decided to drive the cab back to the location of his car. Acevedo directed him to turn down 16th Street and to stop next to the bank. Mariani testified that there had been no prior conversation about going to the bank or robbing it. He further stated in direct contradiction to the government witnesses' testimony, that they had not driven past the bank once and that Acevedo was sitting in the front seat, not in the rear seat. Acevedo, according to Mariani's testimony, then took a brown folder from under the seat, donned a wig and sunglasses, and removed a gun from under his belt. He told Mariani to wait for him and that he was going to get some money. Mariani stated that it was at this moment that he realized that Acevedo was going to rob the bank. Fearful of being involved and recognized, Mariani said that he sped off before Acevedo entered the bank. When he learned from his wife that FBI agents wanted to question him, he told her that he would turn himself in, and he did call FBI headquarters to leave a message to that effect. He was arrested before he accomplished this plan.

Mariani acknowledged that he initially denied that he knew anything about the robbery. He later signed a statement summarizing his conversation in Spanish with the agents in which he said that he drove the cab and that he "assumed" Acevedo was going to rob the bank when he entered it. ² Mariani testified that the government witnesses had erroneously placed Acevedo in the back seat of the cab and had lied with they said that he initially denied being in the vicinity of the robbery. He also disclaimed having told FBI agents on the night of his arrest that he wanted to be in a drug program. Mariani further denied giving the FBI agents written permission to search his car, but his recollection was refreshed when he was shown the document. He also denied telling the agents that they would find bullets in his car if it were searched.

It is a basic principle of criminal law that to be convicted of aiding and abetting, more than "mere presence" at the scene is required. Rather, the defendant must be shown to have knowingly associated with and participated in the criminal venture in a manner designed to accomplish its goal. United States v. Johnson, supra, 513 F.2d at 823; United States v. Dickerson, 508 F.2d 1216, 1218 (2 Cir. 1975); United States v. Peoni, 100 F.2d 401, 402 (2 Cir. 1938). We disagree with appellant's contention that the government succeeded in establishing only his mere presence at the scene of the bank robbery.

A surveillance team, tipped off that a bank robbery would be committed by the occupants of...