United States v. Di Canio, No. 378

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MEDINA, LUMBARD and WATERMAN, Circuit
• Citation: 245 F.2d 713
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles DI CANIO, Defendant-Appellant.
• Decision Date: 01 July 1957
• Docket Number: No. 378,Docket 24548.

245 F.2d 713 (1957)

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles DI CANIO, Defendant-Appellant.

No. 378, Docket 24548.

United States Court of Appeals Second Circuit.

Argued June 4, 1957.

Decided July 1, 1957.

245 F.2d 714

Leonard P. Moore, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y. (Cornelius W. Wickersham, Jr., Chief Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff-appellee.

Charles DiCanio, pro se.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

On June 22, 1954, an armed robber, apparently working alone and without confederates, held up the branch bank of the Manufacturers Trust Company at 799 Blake Avenue, Brooklyn, New York. The bank was a member of the Federal Reserve System whose deposits were insured by the Federal Deposit Insurance Corporation. That the bank robbery took place was not disputed; the sole issue was whether Charles DiCanio was the robber. The jury found him guilty on both counts of an indictment charging bank robbery in violation of 18 U.S.C. § 2113(a) and putting the lives of persons in jeopardy by the use of a dangerous weapon in consummating the robbery, in violation of 18 U.S.C. § 2113(d). The trial judge imposed concurrent sentences of 18 years imprisonment, and DiCanio appeals.

Most of the grounds of appeal are so frivolous as not to require discussion. Appellant claims there was too much identification, that the witnesses repeatedly pointed him out as the robber, and were allowed to say they were positive he was the man; that the trial judge made matters worse by asking occasional pointed questions, which appellant tells us was done to an extent which overstepped the bounds of judicial propriety; that it was error for the trial judge to permit the prosecutor, during his summation, to hold his watch and note the lapse of 38 seconds, there having been testimony by the teller, Clara Egan, that appellant held a revolver pointed at her and she saw him for 38 seconds, while putting $3705 of the bank's money, at appellant's direction, into a canvas bag he had brought with him for the purpose; and that it was error not to permit the jury to inspect another courtroom, where a prior identification had taken place, to be sure of its exact dimensions. There is nothing in any of these contentions. We can find nothing in the conduct of the trial judge to warrant the criticisms aimed at him; and, while we can understand that, from appellant's point of view, the identification may have appeared repetitious and over-positive, the Government was clearly entitled to produce every witness who saw appellant at the time of the robbery. Another contention, strangely enough, is that the evidence is not sufficient to warrant a conviction, despite the clear and unequivocal identification of appellant and the testimony of Mrs. Egan that he held her up at the point of a pistol

245 F.2d 715

and forced her to put the money in the bag and hand it to him

There is one point, however, which we shall consider in some detail, as it is bound to arise occasionally and we think a clear and simple statement of the applicable law may be helpful.

The court stenographer who reported the trial died about five months later and before he had transcribed the minutes. There is no indication whatever that he was ill at the time of the trial; and the transcript was prepared and written out by another court reporter from the notes of the man who had died. The transcript now certified to us consists of 204 pages. On 32 of these pages there are slight omissions, marked by one or more asterisks, where the reporter who wrote out the transcript found the notes of his colleague not sufficiently legible. Appellant does not seek relief by way of a hearing to ascertain by inquiry of the trial judge and the lawyers what was said at the few places where the asterisks appear; indeed, appellant asserts no claim whatever as to what was said but not transcribed. What he does seek is a reversal of the judgment of conviction and a new trial, on the ground of the inadequacy of the record before us.

In practically every instance the...