United States v. Gorman, No. 97

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: FRIENDLY and KAUFMAN, Circuit , and HERLANDS
• Citation: 355 F.2d 151
• Parties: UNITED STATES of America, Appellee, v. Robert William GORMAN and Edward Terrence Roche, Appellants.
• Docket Number: Docket 29709.,No. 97
• Decision Date: 07 December 1965

355 F.2d 151 (1965)

UNITED STATES of America, Appellee,
v.
Robert William GORMAN and Edward Terrence Roche, Appellants.

No. 97, Docket 29709.

United States Court of Appeals Second Circuit.

Argued October 1, 1965.

Decided December 7, 1965.

355 F.2d 152

Thomas D. Clifford, New Haven, Conn., for appellant Robert William Gorman.

Gregory P. Patti, Bridgeport, Conn. (Paul V. McNamara, Bridgeport, Conn.), for appellant Edward Terrence Roche.

Howard T. Owens, Jr., and Samuel J. Heyman, Asst. U. S. Attys. (Jon O. Newman, U. S. Atty., District of Conn.), for appellee.

Before FRIENDLY and KAUFMAN, Circuit Judges, and HERLANDS, District Judge.^*

FRIENDLY, Circuit Judge:

Gorman and Roche appeal from a judgment of the District Court for Connecticut convicting them, after a jury

355 F.2d 153

trial, of robbing the Connecticut National Bank in Ridgefield, which is insured by the Federal Deposit Insurance Corporation. See 18 U.S.C. § 2113(a) and (b)

The Government's evidence was not merely sufficient but overwhelming. The manager and the bank teller identified Gorman and Roche as the men who had robbed the bank at gunpoint, as did an employee of a store next door. Gorman was found in the Bronx on the night of the robbery with an attaché case containing a revolver and $26,000 of currency stolen from the bank; Roche was located on Long Island the next day with a gun in an attaché case and some $35,000 of stolen bills. In addition the jury had before it testimony as to an oral confession by Gorman and an identification by him of Roche as his accomplice. Gorman offered no evidence in defense; Roche testified that the luggage in which the stolen money was found in his hotel room had been left there by Gorman. The numerous points on appeal concern an incident that arose early in the trial and the admissibility of evidence material to the Government's case. We affirm the convictions.

I.

Both defendants urge that a mistrial should have been granted because a wrong indictment was read to the jury. Immediately after the jury was impaneled, the judge said he wished to explain the case being tried. He stated that one indictment charged Gorman and Roche with the substantive crime of taking money by force and violence from a bank at Ridgefield on September 8, 1964, and another with conspiring to do so.¹ He went on to say that a third indictment charged a similar substantive crime with respect to a Greenwich bank on April 22, 1964. The prosecutor immediately asked leave to approach the bench, and the judge stated, after discussion:

It has come to my attention that these men are not being charged with a bank robbery in Greenwich. The only way I can explain it is that the indictment is right here in front of me, and I read from the indictment. I will decide what to do about it after I excuse the jury from the room.

When court reassembled, defense counsel moved for a mistrial. The judge denied the motion but instructed the jury that it must "totally disregard the mention by the Court of what happened in Greenwich, because as far as we are concerned, nothing happened in Greenwich concerning these defendants." He repeated this several times, also explaining that the Greenwich indictment had been "inadvertently put on the bench" by someone and that he ought not to have read from it.

We are at a loss to understand why the judge did not proceed to cure the error, made so early in the trial, by granting defendants' motion and immediately impaneling another jury; the time that would have been lost in doing this was inconsequential as compared to the risk of a reversal — a course we might well have felt compelled to take if the case had proved to be a close one. Despite the comforting assurance in Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), we cannot deny the force of the contention that the jury could hardly have been expected to comply with the judge's direction altogether to erase the reading of the Greenwich indictment from their minds. We can fairly assume, however, that what the jury would remember was only that Gorman and Roche had been accused of another robbery. The impact of that recollection would have been largely blunted by the judge's careful and thorough instruction, in connection with the crime charged, that an indictment "is to be accorded no weight" in determining guilt or innocence. Refusal to order a mistrial for admitting evidence of a crime not charged in the indictment has been held not to require reversal when the error

355 F.2d 154

was inadvertent and the other evidence of guilt was "so strong that it is unbelievable that a rational jury would have acquitted if this error had not occurred." United States v. Tramaglino, 197 F.2d 928, 932 (2 Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952). That is the situation here, if, as we hold, the challenged evidence was properly received. Applying the test of harmless error, 28 U.S.C. § 2111, we conclude that under the circumstances the judge's mistake in referring to the Greenwich indictment "did not influence the jury, or had but very slight effect," and that the substantial rights of the defendants were not infringed. See Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)

II.

We next consider Gorman's claims that he was unlawfully arrested, that the search which produced the evidence used against him was illegal, and that his confession was unlawfully obtained. The lawfulness of the arrest is important because it provided the basis both for a search leading to discovery of a gun and a large sum of stolen currency and for the detention during which Gorman made his confession, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963).

The facts surrounding the arrest were determined by the judge after a hearing on a pretrial motion to suppress: In the evening of September 8, 1964, three detectives of the New York City Narcotics Bureau, while patrolling in the Bronx, observed two known addicts enter an automobile operated by Gorman. The auto drove away and then stopped on a narrow sidestreet not used as a public thoroughfare. The detectives saw Gorman leave the car, raise the hood and twice open and close the trunk. Suspecting that the occupants of the car were using narcotics, the officers approached from different positions and saw Gorman injecting himself with a hypodermic needle. A detective walked up to the car, ordered the occupants to stay where they were, reached into it to remove the needle from Gorman's arm, and placed him under arrest for violation of § 1747-d of the N. Y. Penal Law, McKinney's Consol.Laws, c. 40.² After searching the interior of the car, the detectives directed Gorman to open the trunk in order to ascertain what he was "doing in there before." They discovered an attaché case containing a revolver and a large sum of money, later found to have been stolen from the Ridgefield bank. Gorman identified himself as James Connor of Connor and Noel Surgical Instrument Company, Houston, Texas, and insisted he had drawn the money from a bank to purchase equipment for the company. Shortly afterwards he changed his story, claiming that the money came from a burglary in Houston, and offered the detectives $10,000 to let him go.

Gorman argues that the arrest was unlawful and that, even if it was valid, the subsequent search violated the Fourth Amendment because, with the automobile in possession of the police, a search warrant should have been obtained. We need not tarry over the first argument since it is based on challenges to the testimony of the detectives which cannot be sustained over the findings of the trial judge who, having seen and heard the witnesses, was justified in accepting the version offered by the prosecution; on these facts, the arrest was lawful under § 177 of the New York Code of Criminal Procedure. In his attack upon the validity of the ensuing search, Gorman does not seriously dispute that the search of the trunk came within the oft-quoted language in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925), relied on in United States v. Rabinowitz, 339 U.S.

355 F.2d 155

56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950), upholding a search of "the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody * * *." His contention is rather that these cases upholding the validity of such searches have been undermined by the more recent decisions in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). We find no basis for so concluding, despite statements in concurring and dissenting opinions in Chapman, 365 U.S. at 618, 621-623, 81 S.Ct. at 780-781, rarely a safe guide to the holding of the majority. The Chapman case did not present the issue of a search incident to a lawful arrest. Preston, which did, cited the Rabinowitz decision,³ but proceeded on the ground that "once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest." 376 U.S. at 367, 84 S.Ct. at 883, accord, James v. State of Louisiana, 86 S.Ct. 151 (Oct. 18, 1965); and the Court assumed that "the police had the right to search the car when they first came on the scene," 376 U.S. at 367-368, 84 S.Ct. at 833. The rule that officers making a valid arrest of one or more occupants of an automobile can, without a warrant, then and there search the car including its trunk is reasonable not only because of necessity in many cases but because a speedy search may disclose information useful in tracking down accomplices still on the move. Although the narcotics offense for which Gorman and his associates here...