United States ex rel. Rosenberg v. Mancusi, 637

• Citation: 445 F.2d 613
• Decision Date: 24 June 1971
• Docket Number: No. 637,Dockets 32522-32551.,692,637
• Parties: UNITED STATES of America ex rel. Jerome ROSENBERG, Petitioner-Appellant, v. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, N. Y., Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

445 F.2d 613 (1971)

UNITED STATES of America ex rel. Jerome ROSENBERG, Petitioner-Appellant, v. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, N. Y., Respondent-Appellee.

Nos. 637, 692, Dockets 32522-32551.

United States Court of Appeals, Second Circuit.

Argued March 24, 1971.

Decided June 24, 1971.

Robert Kasanoff, New York City, Robert D. Kamenshine, Nashville, Tenn., the New York Legal Aid Society, for petitioner-appellant.

Brenda Soloff, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for respondent-appellee.

Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

Petitioner-appellant Rosenberg and two codefendants, Anthony Portelli and Anthony Dellernia, were tried before a jury in the New York Supreme Court, Kings County, on two counts of murder in the first degree for the killing, on May 18, 1962, of two policemen who interrupted the robbery of a tobacco store in Brooklyn. Rosenberg and Portelli were convicted and sentenced to death. The sentences were subsequently commuted to life imprisonment, the convictions were affirmed on appeal,¹ and certiorari was denied by the U. S. Supreme Court.² Dellernia was granted a mistrial and was subsequently acquitted after a second trial.

Rosenberg, confined in the New York State prison in Attica, New York, filed two applications for habeas corpus in the Western District of New York. One of these raised the issue of adverse pre-trial publicity, and this application was transferred to the Eastern District of New York, the district that includes Kings County, where it was denied after an examination of the record. The other application raised Sixth Amendment issues concerning the right of the accused to confront adverse witnesses and due process issues concerning the coercion of a witness's testimony. This application was also denied. The appeals from the denials were consolidated and the Legal Aid Society was appointed as counsel. Because of the complexity of the issues, we set forth a detailed narration of the background of the case, beginning with the details of the robbery as elicited from the prosecution witnesses at trial.

Louis Ferrara, who was employed in Dellernia's brother's candy store, testified that on May 18, 1962, he overheard a conversation between Rosenberg and Anthony Dellernia in which Rosenberg said something about a "score," meaning a robbery, and Dellernia objected to the choice of the neighborhood. Later in the morning, while on an errand, Ferrara witnessed the receipt of a gun by Dellernia from one Zarcone. On returning from this errand, Ferrara saw Rosenberg and Portelli engaged in conversation outside the candy store. Still later Ferrara loaned Rosenberg a pair of sunglasses with his nickname "Gee" scratched on the ear pieces. Finally, at about 3:30 P.M., Ferrara heard Dellernia ask his brother for the keys to his car "because he had to go to pick up Jerry Rosenberg." Dellernia took the keys and departed with one Linda Manzione.

Miss Manzione, a former girl friend of Rosenberg, knew all three defendants. She testified that at 2 P.M. on the day of the shooting she had seen Rosenberg taking a gun from a shelf in Dellernia's brother's store. This gun was similar to one she had previously seen in Rosenberg's possession and to the one later found near the scene of the robbery. Later, around 3:30 P.M., she left the candy store with Dellernia, and they picked up Rosenberg and Portelli. After a brief conversation evidencing some suspect plan, Rosenberg and Portelli were dropped off.

Shortly after 3:30 P.M. the Borough Park Tobacco Company, owned by David and Robert Goldberg and their father, was robbed by two men, one of whom apparently remained near the front of the store while the other herded the customers and the Goldbergs into a storeroom. This latter robber (whom we will refer to as the "inside" robber) wore sunglasses and held a handkerchief over his face with one hand; there was a gun in the other hand. His apparel matched the description of the clothing worn by Rosenberg when Miss Manzione had last seen him a few minutes earlier. As this robber attempted to close the door to the backroom, he momentarily lowered the handkerchief from his face, revealing himself to Robert Goldberg, who later identified the face, so disclosed, to be that of Rosenberg.

Apparently disturbed about the dearth of money in the cash register, this "inside" robber went back to the storeroom and demanded that someone show him where the money was. David Goldberg took the robber to the front of the store and gave him what additional money there was in the office. The robber, still unsatisfied, flew into a rage and went back to the storeroom where he demanded more money from Robert Goldberg. Between the front office and the storeroom, the robber had substituted a towel stained with ink for the handkerchief he had been using as a face mask. Just after the robber demanded more money from Robert Goldberg, there was a volley of shots. David Goldberg, who was still in the front office, turned toward the entrance and saw Luke Fallon, whom he knew to be a police detective, fall to the floor with his gun in his hand. In the same volley, Detective John Finnegan, who was outside the store entrance, was also shot.

Robert Goldberg rushed out of the storeroom at this point and saw the "inside" robber running around in a frenzy. Goldberg continued toward the front of the store and, in so doing, encountered a man whom he later identified as Portelli. Goldberg asked if the man was a cop. The man paused, said he was a cop, and ran toward the street door. Before he reached the door he encountered David Goldberg. He again yelled that he was a cop and rushed out the door. After Portelli ran out, David Goldberg looked toward the back of the store and saw the "inside" robber still running around in a frenzy with the ink-stained towel outstretched from his face. He identified this robber as Rosenberg. Rosenberg still had his gun in one hand and the towel in the other when he finally fled from the store.

The shots had attracted much attention, and as the robbers exited from the tobacco store there were several witnesses who corroborated the descriptions given by the Goldbergs. In addition, Mrs. Brenda Izzo, who lived on the route taken by the "inside" robber, witnessed a man, obviously in very hasty flight, run up the steps of her apartment house. Encountering Mrs. Izzo, he paused, looked back behind him, and continued into the apartment house past Mrs. Izzo. During the pause Mrs. Izzo caught a very good look at the man and later identified him as Rosenberg. At the time he was not wearing a hat or sunglasses, and he had nothing in his hands; his clothing matched the description given by the other witnesses and by Miss Manzione.

Later, in a trashcan on the route from the tobacco store to Mrs. Izzo's apartment building, police discovered Ferrara's sunglasses, the ink-stained towel taken from the tobacco store, and a hat which Rosenberg had bought a week earlier and which matched the description of the hat worn by the "inside" robber.

While the robbery was being executed, Dellernia and Miss Manzione were parked in the near vicinity. Miss Manzione testified that when gunshots were heard, Dellernia pulled away quickly from the curb and said, "He never learns, he never learns." When Miss Manzione asked, "Who?," Dellernia responded "Jerry," meaning Rosenberg. Dellernia returned to the vicinity of the tobacco store, and asked Miss Manzione if she saw Rosenberg anywhere. She did not.

As would be expected, this double "cop-killing" aroused much public sentiment. Certain officers in the police department engaged in unrestrained and misleading public statements and antics concerning the guilt of the defendants, and certain elements of the news media capitalized on the sensational aspects of the case. In addition, it is conceded that the police physically tortured one Richard Melville into confessing that he had harbored Portelli in his house on the night of May 19 and into narrating what Portelli had told him at that time. Melville subsequently testified at trial and repeated his conversation with Portelli. This conversation included a statement by Portelli, referring to the proceeds of the robbery, that "Jerry took the rest." This behavior by the police and the news media during the search for and the arrest of the defendants has been soundly condemned by the other courts involved in the case,³ and we wholeheartedly concur in that condemnation.

Rosenberg makes three claims of constitutional error in his petitions for habeas corpus. He first argues that the testimony of Richard Melville was coerced and that its admission into evidence deprived him of a fair trial. Second, he contends that the atmosphere created by the news media made a fair trial in New York City impossible and that a defense motion for change of venue should have been granted. Finally, he urges that the references to him by Portelli and Dellernia which were admitted through the testimony of Melville, Ferrara, and Miss Manzione deprived him of his right to confront the witnesses against him under the Sixth Amendment as interpreted in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

I.

We first consider the contention that a change of venue should have been granted. As mentioned earlier, the crime was committed on May 18, 1962. The publicity concerning the crime and the arrest of the defendants lasted for approximately ten days and then died out. The trial began on January 18, 1963, and lasted for a full month. The jury was sequestered from the second day of the trial until the verdict was returned. In addition, from December 8, 1962, until after the trial was ended, all of the major New York newspapers were closed by a strike. Between the initial flurry of news at the time of the crime and the time of the...