United States v. De Larosa

• Decision Date: 27 September 1971
• Docket Number: No. 19065-19067,19113.,19065-19067
• Citation: 450 F.2d 1057
• Parties: UNITED STATES of America v. Octabio Gerard DE LAROSA et al. Appeal of Walter Lance NOEL, in No. 19065. Appeal of Edward Walter FUNCHES, in No. 19066. Appeal of Burrell Banks BASKIN, in No. 19067. Appeal of Willard Thomas JONES, in No. 19113.
• Court: U.S. Court of Appeals — Third Circuit

450 F.2d 1057 (1971)

UNITED STATES of America v. Octabio Gerard DE LAROSA et al. Appeal of Walter Lance NOEL, in No. 19065 Appeal of Edward Walter FUNCHES, in No. 19066 Appeal of Burrell Banks BASKIN, in No. 19067 Appeal of Willard Thomas JONES, in No. 19113.

Nos. 19065-19067, 19113.

United States Court of Appeals, Third Circuit.

Argued June 7, 1971.

Decided September 27, 1971.

COPYRIGHT MATERIAL OMITTED

Veto J. Rich, Pittsburgh, Pa., for appellant Noel.

H. David Rothman, Pittsburgh, Pa., for appellant Funches.

Franklin E. Conflenti, Cauley, Birsic & Conflenti, Pittsburgh, Pa., for appellant Baskin.

Stanton D. Levenson, Levenson & Snyder, Pittsburgh, Pa., for appellant Jones.

Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before STALEY and ADAMS, Circuit Judges, and GARTH, District Judge.

OPINION OF THE COURT

GARTH, District Judge.

The four appellants in this case and one Octabio De Larosa were indicted for bank robbery and assault in the course of a bank robbery under 18 U.S.C. §§ 2113(a, d) & 2. De Larosa changed his plea to guilty prior to trial and then testified against the four remaining codefendants. All four were found guilty by a jury on both counts of the indictment.

The offense of which appellants were convicted was the robbery of $17,338.88 from the Hays Branch of the Pittsburgh National Bank on November 28, 1969. Employees of the bank and bystanders testified that four men wearing ski masks and rubber gloves entered the bank. A fifth, De Larosa, remained outside in a getaway car. The robbers who entered the bank carried handguns and fired a number of shots before or while leaving the bank.

After the robbery a bank teller found on her counter a cash-in slip which bore the imprint of a tennis shoe. During the investigation that followed, an expert determined that the imprint had been left by a shoe belonging to appellant Baskin. Also, a segment of a rubber glove was found in the vault of the bank and later matched with a pair of gloves which were found near appellant Baskin when he was arrested.

Accomplice Testimony

Appellants Noel, Funches and Jones assert that their convictions were supported by no evidence other than the testimony of De Larosa, admittedly an accomplice. While there were numerous witnesses to the commission of the robbery by five men, there was no evidence — direct or circumstantial — identifying Noel, Funches and Jones as perpetrators, other than De Larosa's testimony. They contend that due process of law under the Fifth Amendment is violated by a conviction based upon uncorroborated accomplice testimony. An accomplice is generally unreliable, appellants assert, because the accomplice is motivated to provide inculpatory testimony by an expectation of lenient treatment of his own offenses. Moreover, in this particular case the accomplice was, according to appellants, self-contradictory and personally biased against them.

Disregarding appellee's references to corroboration of De Larosa's testimony by other witnesses and assuming that the convictions below were based upon uncorroborated accomplice testimony alone, we nevertheless reject the contention of appellants. They cite no authority for their constitutional argument. In view of the frequent absence of proof of crime other than the account of a participant, a jury should be permitted as a general rule to convict when persuaded of the credibility of the testimony of an accomplice. "The mere fact that a witness hopes to receive a reduced sentence by testifying for the prosecution does not disqualify him." De Rosier v. United States, 407 F.2d 959, 962 (8th Cir. 1969). "* * * There is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them." Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Holmgren v. United States, 217 U.S. 509, 30 S.Ct. 588, 54 L.Ed. 861 (1910). We follow the Supreme Court in holding that uncorroborated accomplice testimony may constitutionally provide the exclusive basis for a criminal conviction. Caminetti v. United States, supra; United States v. Zarra, 298 F.Supp. 1074, 1080 (M.D.Pa.), aff'd, 423 F.2d 1227 (3d Cir. 1969), cert. denied, 400 U.S. 826, 91 S.Ct. 52, 27 L.Ed.2d 56 (1970); De Carlo v. United States, 422 F.2d 237 (9th Cir. 1970); United States v. Vita, 294 F.2d 524 (2d Cir. 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed. 2d 788 (1962) and Carmel v. United States, 369 U.S. 866, 82 S.Ct. 1032, 8 L. Ed.2d 85 (1962); Lockett v. United States, 374 F.2d 883 (5th Cir. 1967).

Apart from their constitutional objection appellants contend that there was insufficient evidence of guilt to support the verdict. This argument must be rejected. De Larosa identified each of the appellants as participants in the crimes charged. A review of the record indicates that the accomplice's testimony was not so weak and inconsistent as to require a directed verdict of acquittal. His testimony was in fact corroborated with respect to various details of the robbery other than the identification of Noel, Funches and Jones as perpetrators.¹

In a related argument appellants Funches and Jones attack the trial court's charge to the jury for failing to state that accomplice testimony comes from a corrupt or polluted source. The trial court instructed the jury that it should "keep in mind that such accomplice testimony is always to be received with caution, and weighed with great care," but the judge did not use the word "corrupt" or "polluted."

Contrary to appellants' contention, this Court in United States v. Fawcett, 115 F.2d 764 (3d Cir. 1940), did not establish a mandatory requirement that accomplice testimony be described as emanating from a corrupt or polluted source. It was merely held in Fawcett that, viewing the charge as a whole, it was not error for the trial court to instruct the jury that an accomplice's testimony was "corroborated in some small degree." The trial court in Fawcett had characterized accomplice testimony as coming from a polluted source. This Court did not indicate that "polluted source" was an essential element of the charge, rather than a phrase which a trial court might in its discretion use when requested by the defendant.

We find no merit in appellant Funches' other contentions regarding the alleged overemphasis in the charge of evidence which corroborated the testimony of the accomplice.

Newspaper Publicity

Appellants Funches and Jones assign as error the denial of their motions for a mistrial on the ground of exposure of the jury to prejudicial publicity. On the evening of May 13, 1970, after the second day of trial, shots were fired into the home of De Larosa, the chief witness for the Government. The incident was reported by two local papers on May 14 and 15. The articles did not, however, identify the individuals responsible for the shooting. One of the articles indicated that all four defendants were in jail. The other article noted that no suspects of the shooting had been arrested yet. From either of these facts it could have been inferred that the appellants did not personally do the shooting.

When the publicity was brought to the attention of the Court on May 15, the trial judge conducted a voir dire to determine the exposure of the jury to these articles. Four jurors admitted to some exposure to this publicity.² The Court asked those who had been exposed: "With the knowledge that you have of that article, do you feel that you are able to continue as a juror in this case, and decide the facts, and bring in a verdict based solely upon the facts you have heard in the courtroom and the evidence which has been adduced in the courtroom without being influenced * * * by the article?" After receiving affirmative responses from the jurors, the Court went further, and inquired whether the exposed jurors had discussed the articles with the other jury members. Upon being satisfied that they had not, the Court denied the motion for a mistrial.

The trial court has broad discretion in determining whether in the special facts of a particular case a motion for a mistrial should be granted due to prejudicial publicity. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). There was no abuse of discretion in the denial of the motion below.

The extent of the exposure of the jury to the press publicity was rather limited in this case. Only a small minority had been exposed. In addition, the jurors who had been exposed claimed they were able to deliberate impartially despite this publicity.

While it is true that assurances from the jury were not accepted in Marshall, supra, the two situations are hardly analogous. In Marshall, the newspaper articles were seen by seven of the jurors. The trial court had previously ruled that the information printed was so prejudicial that it could not be directly offered as evidence, and had rejected an offer of such evidence. The Marshall articles directly referred to the defendant and his prior criminal record and activities. Here, by contrast, we have a minimal exposure of jurors to information concerning an incident the motive for which is unknown and the perpetrator unidentified.

After the denial of his motion for a mistrial, Funches requested the trial court to give a cautionary instruction³ regarding the publicity in the final charge to the jury. The Court denied the request, but the jury was instructed as follows: "* * * you would violate your sworn duty if you base your verdict on anything but the evidence heard in the courtroom and these instructions on the law." It would have been better practive to give the charge requested, which unmistakably prohibited consideration by the jury of information obtained from the news media. However, in view of the instruction actually given in the final charge and the thorough voir dire conducted...