U.S. v. Marzano, 75-1511

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation33 A.L.R.Fed. 307,537 F.2d 257
Docket NumberNo. 75-1511,75-1511
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pasquale Charles MARZANO, Defendant-Appellant.
Decision Date28 June 1976

Page 257

537 F.2d 257
33 A.L.R.Fed. 307
UNITED STATES of America, Plaintiff-Appellee,
Pasquale Charles MARZANO, Defendant-Appellant.
No. 75-1511.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 11, 1976.
Decided May 18, 1976.
Rehearing and Rehearing En Banc Denied June 28, 1976.

Page 260

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

Page 261

Samuel K. Skinner, U. S. Atty., James M. Breen, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, CUMMINGS, and PELL, Circuit Judges.

PELL, Circuit Judge.

This case arose out of a widely publicized theft of more than three million dollars from the vaults of Purolator Security, Inc. in Chicago, Illinois, sometime Sunday evening or Monday morning, October 20 or 21, 1974. The company was engaged in the business of providing armored car service for the transportation of cash between banks and business establishments.

In November 1974, an indictment was returned against Pasquale Marzano, William Marzano, Ralph Marrera, Luigi DiFonzo, Peter Gushi, and James Maniatis. Count one of the indictment charged these persons with conspiracy to commit various offenses including the theft of money from Purolator Security, Inc. Counts two through seven charged the two Marzanos and Marrera with taking money belonging to various banks 1 from the possession of Purolator in violation of 18 U.S.C. § 2113(b). 2 Gushi and Maniatis were charged with aiding and abetting in each of these counts. Count eight charged the same persons with the same offenses as counts two through seven but included all the banks in the one count. Count nine charged the Marzanos and Marrera with entering a building used in part as a bank for the possession of money belonging to Merchandise National Bank with the intent to commit a felony in violation of 18 U.S.C. § 2113(a). Gushi and Maniatis were charged with aiding and abetting that offense. Counts ten and eleven charged the Marzanos and Marrera with the use of an explosive in violation of 18 U.S.C. § 844(h)(1) and 18 U.S.C. § 844(i), respectively, and Gushi and Maniatis with aiding and abetting these offenses. Count twelve charged the Marzanos, DiFonzo, and Gushi with transporting stolen money in violation of 18 U.S.C. § 2314. 3

Maniatis pled guilty to counts one through eight, and the remaining counts

Page 262

against him were dismissed. Gushi pled guilty to all counts except count eight. The Government moved to dismiss counts eight and nine against the remaining defendants, and that motion was granted. William Marzano pled guilty to the remaining counts although the guilty plea to count ten was apparently withdrawn later. Marrera was severed from the other defendants because of a competency question as to him. Pasquale Marzano and DiFonzo were tried before a jury. DiFonzo was found not guilty on all counts; Pasquale Marzano was found not guilty on counts ten and eleven but guilty on counts one through seven and twelve. He is the sole defendant on this appeal and will sometimes herein be referred to as the "defendant."

A detailed recitation of the evidence against Marzano is unnecessary to resolve the issues presented on this appeal. The witnesses against the defendant included Gushi, who testified to much of the planning of the theft; Martin Pollakov, an undercover informant for the Illinois Legislative Investigating Commission (ILIC) who worked at a discount store owned by Gushi while investigating possible fencing operations and who met with defendant and Gushi on several occasions; and Edward Doyle, an agent of the ILIC who posed as Pollakov's friend and worked as a handyman and errand boy at the store. In addition, expert testimony was presented which indicated that paint chips from the containers that Purolator used to store money were found in a van that defendant had been seen driving, although always with gloves, and which had been purchased with funds which had at least partially been provided by him. The most direct evidence was provided by Gushi.

I. Right to Confrontation

Defendant argues that he was deprived of his Sixth Amendment right to confrontation, his due process right to a fair trial, and his constitutional right to present defense evidence because the trial judge unduly limited his cross-examination of Gushi and unduly limited him in presenting extrinsic evidence showing Gushi's self-interest and bias.

The various errors alleged must be considered in the context of the entire trial and in light of their probable cumulative prejudicial effect. Of necessity, however, the errors alleged must be discussed individually.

A. Guishi's Hopes

Defendant argues that his counsel was improperly restricted in questioning Gushi about his hopes of avoiding prison. Counsel asked:

Q. Well, then, it is your present testimony that when you made the statement now "that because of your testimony, people will go to jail," you are also hopeful that if others go to jail you won't. Isn't that true?

Mr. Breen: Objection.

By Mr. Echeles:

Q. You are hopeful of that, aren't you?

The Court: Sustained.

This question followed a series of argumentative questions. Counsel was permitted to bring out that Gushi was facing 115 years imprisonment by virtue of pleading guilty to the indictment; that while in prison

Page 263

previously, he had attempted suicide because he could not take the prospect of serving more time; that he disliked and feared the prospect of going to prison; that he would like not to go to prison if possible; that he was concerned about his family if he had to serve more time; and that he hoped his wife would not be prosecuted for offenses which his testimony indicated she had committed. Some of these points were brought out more than once. In closing argument defense counsel argued that Gushi testified as he did to protect his wife from criminal charges and because he "knew" someone would "get him off."

The jury was clearly aware that Gushi had much to lose by not cooperating with the Government and could not have been unaware that he hoped to avoid a prison sentence. We cannot hold that it was reversible error for the court to sustain the Government's objection to a question of doubtful propriety, the answer to which could only have repeated what appears adequately elsewhere in the record.

Defendant argues that the trial judge informed the jury that there was no merit to the defense theory that Gushi was biased and effectively diluted defendant's right to have the jury draw permissible inferences regarding Gushi's credibility. The record does not support this argument.

During closing argument the following colloquy occurred:

Mr. Echeles:

Let me show you. He doesn't want to go back to the penitentiary. Yes, I think about suicide. I am facing 115 years when I pled guilty.

My god, he pled guilty to torching. He pled guilty to the accusations in the indictment, notwithstanding on the witness stand he said he had nothing to do with it because he doesn't care, because he knows somehow Oitzinger, or somebody in the FBI is going to get him off.

The Court: Don't invade my province.

Mr. Echeles: It is not your power. It's afterwards, your Honor.

He doesn't care about pleading guilty even to count and charges to which from the witness stand, notwithstanding his pleas of guilty before Judge Bauer, he didn't do the things he says. He uses words, he uses concepts and ideas as suits him.

The trial judge did not prevent the defense from arguing its theory to the jury. He merely cautioned counsel against arguing that the Government had the power to determine Gushi's sentence. While a defendant has the right to have counsel argue that the jury should draw certain inferences from the evidence, a defendant has no right to have the jury draw incorrect inferences regarding the law. Defendant has not shown that his counsel was prevented from arguing that Gushi had hopes of avoiding prison as a result of his testimony.

The authority cited by defendants is inapposite. In United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), it was held that the trial judge had made rulings during closing argument which were comparatively more restrictive to the defense than to the Government; no such showing was made in this case. Indeed, in the present case, the defense reply brief agreed "that the trial judge's demeanor and patience during this long and hotly contested trial was exemplary." In United States v. Gonzalez, 488 F.2d 833 (2d Cir. 1973), the trial judge made statements immediately after giving an accomplice instruction which negated the instruction and in effect indicated that the warnings in the instruction did not apply in that case. In United States v. DeLoach, 164 U.S.App.D.C. 116, 504 F.2d 185 (1974), the trial judge prevented defense counsel from arguing that certain factual inferences could be drawn from the evidence.

The attitude and hopes of the witness with regard to his own incarceration or other punishment for his participation could not have been other than obvious to the trier of fact from that which was in evidence. In sum, the trial judge was acting within his discretion in limiting defense

Page 264

counsel's cross-examination and arguments regarding Gushi's hopes. See United States v. Keefer, 464 F.2d 1385, 1386 (7th Cir. 1972), cert. denied, 409 U.S. 983, 93 S.Ct. 322, 34 L.Ed.2d 247; United States v. Peskin, 527 F.2d 71, 82-83 (7th Cir. 1975). Cf. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974).

B. Bond Reduction

Defendant argues that his counsel was improperly prevented from bringing out fully the circumstances of Gushi's bond reduction and that his rights were prejudiced by the trial judge's remarks regarding the bond reduction. Defendant admits that he was allowed to bring out that Gushi's bond was reduced from $1,000,000 to $50,000 in conjunction with a reduction in...

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