United States v. Callahan

Decision Date22 March 1971
Docket Number35642.,Dockets 35231,No. 444,462,444
Citation439 F.2d 852
PartiesUNITED STATES of America, Appellee, v. Thomas CALLAHAN and Thomas Kapatos, Appellants.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

John R. Wing, Asst. U. S. Atty., New York City (Richard Davis and Jack Kaplan, Asst. U. S. Attys., and Whitney North Seymour, Jr., U. S. Atty. S.D.N.Y., New York City, on the brief), for appellee.

Herald Price Fahringer, Buffalo, N. Y. (Theodore Rosenberg, Brooklyn, N. Y., and Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., on the brief), for appellants.

Before MEDINA, HAYS and ANDERSON, Circuit Judges.

MEDINA, Circuit Judge:

Thomas Callahan and Thomas Kapatos appeal from convictions for conspiring to rob a bank money truck in violation of 18 U.S.C. Section 371 (1964) and for transporting a stolen automobile in interstate commerce in violation of 18 U.S.C. Section 2312 (1964). Each of the appellants was sentenced to consecutive five-year terms on each count. The grand jury had returned a nine-count indictment against Callahan and Kapatos, but most of the charges were dismissed for lack of venue and one for failure of proof.

On December 21, 1964 at Paterson, New Jersey, four armed men made off with over $500,000 in United States currency that was being transported in a panel truck of the First National Bank of Passaic County, the deposits of which were insured by the Federal Deposit Insurance Corporation. Not a penny of this large sum has ever been recovered. The robbery was planned with such meticulous attention to detail that the robbers made their escape leaving behind only the handcuffs and pieces of cord used to truss up the guards and others. The task of solving this crime was one of unusual difficulty but, as a result of several years of persevering investigation, the bits of evidence pieced together at the trial furnished a firm basis for the finding of the jury that both Callahan and Kapatos were beyond a reasonable doubt guilty of the crimes charged.

We are asked to reverse and to dismiss the indictment or to remand the case because of numerous errors alleged to have been committed by Judge Murphy in his rulings at the trial. Some of these claims of error we pass over as clearly lacking in merit. Others can only be understood when viewed against the background of a most complicated aggregate of various detailed proofs, to which appellants' briefs make only passing reference, and which are woefully scrambled in the Government's answering brief. After these items of proof have been pieced together in proper perspective, we believe the points of law will be more readily understood.

Callahan is enlarged on $100,000 bail pending the disposition of this appeal. Kapatos is serving a seven and one-half year sentence on an earlier conviction in the Southern District of New York for armed theft of an interstate jewelry shipment, to which further reference will be made later.

I. The Development of the Conspiracy and How It Resulted in the Robbery at St. Anthony's Rectory on December 21, 1964

The Market Diner near Pier 90 at West 51st Street in New York City was a sort of gathering place for men who more or less worked in the neighborhood. The individuals with whom we are concerned in this case are Thomas Callahan, Frank Campbell, Thomas Kapatos, John Pierce, Henry Speditz — all named as defendants in the indictment — and Charles Roberts, a member of the conspiracy to rob the bank's money truck, who testified for the Government. Most or all of these men had served terms of imprisonment for the commission of crimes of violence, possession of firearms and the stealing of automobiles.

Roberts, who had known Callahan, Campbell, Kapatos, Pierce and Speditz for many years, testified that Pierce, who worked on Pier 90, came to him in January or February, 1964, and said he had discovered a "score" or opportunity to obtain a large sum of money by robbing a bank money truck in Paterson. The two men then proceeded to Paterson in Pierce's car, which was "clean." This meant it was not stolen but was legally owned by Pierce. They surveyed the terrain, became familiar with the route taken by the money truck on Mondays as it delivered bags of currency from the main office to the various branch banks, and returned confident that the scheme to rob the money truck was feasible. They had looked in the money truck and had seen the bags. Pierce even went right into the main office of the bank and saw the bundles of currency put in the bags. So they knew money was in the bags. It was noted that a simple panel truck, rather than an armored car, was used, and there were only two guards. Then Campbell joined the others in the venture, and Pierce suggested they bring in his friend Kapatos who was said to possess several garages in New Jersey, in one of which he had a stolen car loaded with all the equipment and paraphernalia that would be needed in the robbery, such as a machine gun, pistols, Army clothes and field jackets and so on. There were several further trips in Pierce's car to reconnoiter the Paterson area and Kapatos liked what he saw. It was he who suggested the plan originally adopted.

This first plan was to intercept the money truck as it followed its regular Monday route on a street with an open lot on one side and a long factory with high dingy windows on the other. There were intersecting streets before and after passing the factory block. Kapatos's plan was to have a stolen station wagon drive in front of the money truck, slow it down, and then Kapatos, lying on the floor of the station wagon, was to drop the rear window and point his machine gun at the guards in the money truck a few feet behind. Another stolen car with a driver was to lie in wait in one of the side streets while the two other men approached the money truck from either side and overpowered the guards. Then the driver of the second car was to come up behind the money truck to take the loot.

It was apparent that this scheme required a fifth man, and Kapatos brought in his friend Callahan, who said "If Kapatos likes it, I like it." This was in late March or early April of 1964. After further driving around Paterson in Pierce's car, renting a store which they could use as a place of refuge if things went wrong and a small private garage "underneath a house" in which to keep a stolen car, the five men met in New York to discuss what to do next. After some talk it was agreed by all that it was necessary to steal a station wagon and "each and every one of us was to be on the alert in regards to stealing a station wagon." Within a week Kapatos phoned Roberts at his home in Astoria and said he had stolen a station wagon outside of the Copacabana night club in New York City, and for "the rest of us" not to bother about it. He described it to Roberts as long, having lots of windows, a light blue or light green Oldsmobile, with an air conditioning unit in it. It turned out to be a 1962 Mercury. So Kapatos brought the stolen station wagon to Pier 90, and he and Roberts, together with Campbell and Pierce, changed the plates in the street and the four men started for New Jersey. Kapatos drove the station wagon and the others followed in Pierce's car. The time of this is given by Roberts as "some time in April of 1964." On the way out to Paterson they stopped at Fort Lee where Kapatos lived in an apartment house. Upon arrival in Paterson the stolen station wagon was placed in the little one-car garage they had previously rented, and all four returned to New York in Pierce's car.

We pause for a brief digression, as this station wagon will become one of the important links in the chain of proof corroborating the testimony of Roberts. We shall in a moment review Roberts's description of two abortive attempts to rob the money truck in the street alongside of the factory. Roberts participated in these two abortive attempts and then he and Campbell retired from the conspiracy. Until Roberts told his story to the FBI several years after the spectacular robbery at St. Anthony's Church Rectory on December 21, 1964, neither the FBI nor anyone in the prosecutor's office investigating the crime had ever heard of any station wagon, as no station wagon played any part in the robbery at the Rectory. Roberts's recital of the facts concerning the first two abortive attempts, however, gave the FBI for the first time his statement that "some time in April" 1964 Kapatos had stolen a station wagon, containing an air conditioning unit, from the street near the Copacabana in New York. So, upon further investigation it was discovered the police record indicated that such a station wagon had been reported as having been stolen at the Copacabana on April 18, 1964. And a member of the police force of East Paterson testified this station wagon was found abandoned in the extreme westerly corner of a parking lot at the Elmwood Shopping Center, near Paterson on Route 4, on July 25, 1964. The owner, Edward Lebowitz, was located and he confirmed the fact that the car was stolen at the Copacabana on April 18, 1964. And this very parking lot at the Elmwood Shopping Center was the place where Roberts had said the robbers switched cars at the time of the two abortive attempts to rob the money truck. That Roberts could have manufactured out of whole cloth the story about the station wagon with an air conditioning unit stolen from the Copacabana and then have it all fortuitously come true strains credibility far beyond the breaking point.

It requires no more than a few sentences to describe the two abortive attempts in the Spring of 1964. Five men participated in each of these two attempts, including Roberts. They drove out to Paterson in Kapatos's "clean" Oldsmobile after picking up Kapatos's stolen Buick at his garage in West New York, N. J. with all the equipment. At the Elmwood Shopping Center they...

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