United States v. De Sisto

Decision Date20 March 1964
Docket NumberDocket 28342.,No. 296,296
Citation329 F.2d 929
PartiesUNITED STATES of America, Appellee, v. Francis J. DE SISTO, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Frank Serri, Brooklyn, N. Y., for defendant-appellant.

Raymond Bernhard Grunewald, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty., Eastern District of New York), for appellee.

Before FRIENDLY and HAYS, Circuit Judges, and ANDERSON, District Judge.*

Certiorari Denied June 15, 1964. See 84 S.Ct. 1885.

FRIENDLY, Circuit Judge.

On a former appeal, 289 F.2d 833 (2 Cir. 1961), we reversed De Sisto's conviction for hijacking a truck loaded with silk goods shipped from Japan, in violation of 18 U.S.C. § 1951, because of errors in the trial. After a new trial before Judge Mishler and a jury De Sisto was again convicted. His appeal raises questions as to the sufficiency of the evidence in the light of a change in the identification testimony of the truck driver on cross-examination, as to the evidentiary status of the driver's prior identification, and as to charges and omissions to charge. We affirm.

In the early afternoon of September 1, 1959, a truck containing 31 cartons of imported Japanese silk goods was hijacked ten or fifteen minutes after leaving Pier 38 in Brooklyn, while turning from Carroll into Hicks Street. Its progress there was blocked by an Oldsmobile parked at a 45° angle. A man, whom Fine, the truck driver, later identified as De Sisto, walked over from the Oldsmobile, climbed on the running board of the truck on the driver's side, and, with his face about 18 inches away, told Fine, "Look straight ahead, Wimpy, and do what you are told. Pull over to the curb. Don't touch the key. Put the brake on. Do as you are told or I will kill you." Fine complied. Later, as ordered, he descended from the truck, and was herded into the Oldsmobile where taped glasses were placed over his eyes. Two other men who had assisted in this maneuver drove him off to a remote area where he was left handcuffed to a tree.

There was evidence that on the same afternoon De Sisto telephoned the Clesto Auto Service in Brooklyn, operated by two partners, Cleveland and Stork, to rent a large truck; that he drove to the Clesto garage in a Chevrolet accompanied by another man; that he signed a rental contract for a Clesto truck, paid a $50 deposit and drove it off; that the other man drove off in the Chevrolet; that although the truck was to be returned on Friday, September 4, De Sisto called on Friday and again on Saturday, saying that the truck couldn't be returned because it was loaded with furniture which couldn't be moved until the place of prospective delivery was ready; that the FBI found the hijacked truck empty and abandoned on September 4; and that on Sunday, September 6, the authorities found in a Brooklyn garage the Clesto truck containing the 31 cartons of silk goods and nothing else.

De Sisto's chief defense was an alibi. He claimed that he made the telephone call from a restaurant at Eleventh Ave. and 68th Street between 3:13 and 3:15 P.M., a time corroborated by testimony given at the first trial by Cleveland, who had died in the interim,1 whereas pier records showed that Fine had checked out with his truck at 3:00 P.M. As against this Fine testified, although with some contradiction in an earlier statement, that he had left the pier about 2:45 P.M. to 2:50 P.M. and the accuracy of the pier records was challenged. Also, at the new trial, Stork testified he had been the first to talk to De Sisto on the telephone and placed the call around 3:45 P.M. on the basis that De Sisto had appeared at the garage at 4 P.M. and that he had remarked to De Sisto what a short interval had elapsed between the call and De Sisto's arrival. The 4:00 o'clock arrival was verified by the notation of 4:15 P.M. as the time-out on the truck rental contract and by Cleveland's testimony that "the most the whole transaction could have taken" between the time De Sisto arrived and "the time I checked it out at 4:15 was the maximum of fifteen minutes." Beyond this De Sisto claimed that he had rented the truck for a friend, Joe Storch, who had joined him at the restaurant, had paid the $50 deposit and had given De Sisto $10 for signing the contract; that they had come to the garage in De Sisto's Pontiac with a license number differing from that which had been noted on the Chevrolet; and that Storch had driven the truck and De Sisto the Pontiac away from the garage.

Assuming as we do that the Government was required to adduce evidence sufficient that a reasonable juror could be convinced of the guilt of the defendant beyond a reasonable doubt, United States v. Kahaner, 317 F.2d 459, 467-468 (2 Cir.), cert. denied, 375 U.S. 836, 84 S. Ct. 74, 11 L.Ed.2d 65 (1963); United States v. Lefkowitz, 284 F.2d 310, 315 (2 Cir. 1960); United States v. Robertson, 298 F.2d 739, 741 (2 Cir. 1962); Cuthbert v. United States, 278 F.2d 220, 224 (5 Cir. 1960), we think it plain that the evidence we have summarized — and there was more that we have not — amply passed that test if Fine's identification held. Not seriously challenging this, appellant argues that the identification was destroyed and that the Government's case fell with it.

In his direct testimony, Fine, after relating how he had seen the face of the hijacker, made a positive identification of De Sisto, as he had done at the first trial. But on cross-examination, after admitting that he had noticed the arms of the man on the occasion of the hijacking, he said he had seen no identifying marks and specifically no tattoo marks upon them. Defense counsel then had De Sisto remove his jacket to reveal large tattoo marks on the outside upper and lower portions of his arms, which he concededly bore in 1959. On further questioning Fine stated he could not say that De Sisto was the man who jumped on his truck.

The Government set about to repair the damage on redirect. Over objection Fine was allowed to testify that on September 1, 1959, he had told the FBI that his assailant was "A man approximately six feet tall, round face, heavy lips, one day or two days growth of stubble on his face, apparently Italian, heavy set, I think around 200 pounds, 180, 190, something to that effect, sir" — apparently a good description of De Sisto. He also was allowed to testify that on September 5, at FBI headquarters, he had picked De Sisto out of a line-up of four men; that he had identified a photograph of De Sisto's face before the grand jury on September 17; that he had again identified De Sisto at the first trial in November, 1959;2 and that he had identified a photograph of De Sisto's face in the United States Attorney's office shortly before the second trial. Further examination by both sides brought out that Fine had been told of the tattoo markings while he was being prepared to testify at the second trial and that when photographs of De Sisto's arms, taken at the line-up, were shown to him at his request, he had told the prosecutor that the man who jumped on the truck didn't have such marks and that he was now in doubt as to the identification — a doubt to which he adhered through a long examination. Two FBI agents who had attended the line-up testified, over objection, that De Sisto was then wearing a tee-shirt and that the tattoo marks were plainly visible.

We interrupt our discussion of the sufficiency of the evidence to consider appellant's objection to the receiving of Fine's prior identifications and the related testimony of the FBI agents. In the course of the Government's presentation of evidence of Fine's prior identifications, defense counsel sought an instruction to the effect that these could be considered only as bearing on Fine's present credibility3 but not as substantive evidence. Receipt of this testimony without such a limitation is now claimed to have been error which was not cured when, several days later, the judge included in his charge a general instruction that an inconsistent statement by a witness "made prior to trial, not made under oath, is not to be considered as affirmative proof on the issue but only brought before you as impeaching testimony." Accepting that the charge would not correct the claimed error under the circumstances here presented,4 we are thus confronted with the issue as to the evidentiary status of prior statements which, in United States v. Kahaner, supra, 317 F. 2d at 474, we were able to "leave for another day."

The rule limiting the use of prior statements by a witness subject to cross-examination to their effect on his credibility has been described by eminent scholars and judges as "pious fraud," "artificial," "basically misguided," "mere verbal ritual," and an anachronism "that still impede(s) our pursuit of the truth." Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 193 (1948); United States ex. rel. Ng Kee Wong v. Corsi, 65 F.2d 564, 565 (2 Cir. 1933, Judge Swan); McCormick, Evidence 77 (1954); United States v. Allied Stevedoring Corp., 241 F.2d 925, 934 (2 Cir. 1957, Judge L. Hand). See also 3 Wigmore, Evidence, § 1018 (3d ed. 1940); ALI, Model Code of Evidence, Rule 503 (1942); Judge L. Hand in Di...

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