United States v. Rizzo, 16724.

• Decision Date: 21 March 1969
• Docket Number: No. 16724.,16724.
• Citation: 409 F.2d 400
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Ralph RIZZO a/k/a Alfred Dale Rosenheck, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

409 F.2d 400 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Ralph RIZZO a/k/a Alfred Dale Rosenheck, Defendant-Appellant.

No. 16724.

United States Court of Appeals Seventh Circuit.

March 21, 1969.

Tully M. Friedman, Chicago, Ill., for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.

Before SWYGERT, FAIRCHILD and CUMMINGS, Circuit Judges.

FAIRCHILD, Circuit Judge.

Patrick Rizzo was convicted of the offense defined by 18 U.S.C. sec. 2113 (d), robbery of a federally insured bank, aggravated by assaulting the teller, Vera Martin, or putting her life in jeopardy by the use of a dangerous weapon. On appeal he argues (1) that the district judge failed to make sufficient inquiry whether the jurors had heard a prejudicial radio broadcast, (2) that the evidence does not support a finding either of an assault on Mrs. Martin or that her life was placed in jeopardy, and (3) that the instructions defining assault were erroneous.

(1) Prejudicial publicity. At the close of the first day of trial, Judge Eschbach instructed the jurors not to discuss the case, and not to permit themselves "to read, or hear, or see any information from any source pertaining to this case." The jury separated. At 7:30 and 8:00 the next morning a local radio station broadcast a story which mentioned a confession made by Rizzo, which the court had suppressed. Defense counsel moved for a mistrial.

When the jury assembled, Judge Eschbach referred to the instruction given the afternoon before, and asked whether any jurors permitted themselves to violate that instruction. There was no show of hands. He then said he would inquire about one or more news broadcasts which may have been on a local station the night before and that morning concerning events in the case. He asked whether any juror permitted himself to listen to the content of such broadcast at any time. Again no one responded. The motion for mistrial was denied.

Defendant argues that the negative responses to questions addressed to the jurors in each other's presence were an insufficient basis for determination that none had heard the broadcast, and that it was incumbent on the trial judge to question each juror privately.

In this circuit, however, such negative responses are deemed adequate, and "if no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity in question, the judge is not required to proceed further."¹

Defendant suggests no special circumstances in this case requiring a different procedure.

(2) Sufficiency of the evidence of assault and putting life in jeopardy. Mrs. Martin testified that a man, identified by other witnesses as Rizzo, came to her window, and after a preliminary remark said "`This is a holdup.' And he threw the bag on the counter. I said, `Are you kidding?' He said, `No, I am not kidding,' and pulled a gun and fired it. I said, `Hell, take it all,' and started to throw everything, the money out of the cage; and that was it." When asked what she did after the man ran out, she said "Well, I just stood back and shook." "Yes, I was pretty excited; it was unbelievable." Other witnesses corroborated her testimony about virtually throwing the money after the shot was fired, and there was testimony that the bullet passed over Mrs. Martin's left shoulder, out through the window, and struck the building across the street.

On cross-examination, she answered that she didn't think the gun was pointed at her; that the shot went off at the same time she saw the gun; that she didn't know whether the man meant to fire the gun; that she had said to others she didn't think he meant to shoot her; and "I just think he probably meant to scare me."

The statute reads in the alternative, either "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device." Rizzo was charged with assaulting Mrs. Martin and putting her life in jeopardy. The court instructed that either would fulfill that element of the offense.

It was within the province of the jury to interpret the testimony, and we have no difficulty concluding that from the evidence the jury could properly find, beyond a reasonable doubt, that defendant assaulted Mrs. Martin, or put her life in jeopardy by the use of the weapon, or both. Counsel seems to suggest that her answers on cross-examination establish either that she had no fear or no reason to fear that she would be shot. Those answers were probably a reconstruction by hindsight, and her actions at the time established her fear.

Judge Eschbach heard and saw the witnesses. We note that in thanking the jurors for their service he said, "Your verdict is correct, and it is supported overwhelmingly by the evidence. There is no question of it."

(3) The instruction on assault. No challenge is made to the court's instruction that "To `put in jeopardy the life' of a person by means of a dangerous weapon or device means to expose such person to a risk of death by the use of a dangerous weapon or device."

There can be little question but that Mrs. Martin was exposed to the risk of death when the gun was fired, and it may be a sufficient answer to defendant that if the jury so found, it would be immaterial whether the instruction defining assault was correct. Defendant argues, however, that the jury may have based the verdict on a finding of assault, without finding that her life was put in jeopardy, and that if the definition of assault was too favorable to the government, it may have been prejudicial.

The court's definition of assault was:

"Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability to do so, and an intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault. An assault may be committed without actually touching, or striking, or doing bodily harm to the person of another.

"So, a person who has the apparent

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