United States v. Tomaiolo

• Decision Date: 21 November 1957
• Docket Number: No. 390,Docket 24509.,390
• Citation: 249 F.2d 683
• Parties: UNITED STATES of America, Appellee, v. Charles TOMAIOLO and Louis Soviero, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

249 F.2d 683 (1957)

UNITED STATES of America, Appellee, v. Charles TOMAIOLO and Louis Soviero, Appellants.

No. 390, Docket 24509.

United States Court of Appeals Second Circuit.

Argued June 7, 1957.

Decided November 21, 1957.

Maurice Edelbaum, New York City, for appellant Charles Tomaiolo.

Marvin Schwartz and Andrew N. Heine, New York City, for appellant Louis Soviero.

Louis Soviero, pro se.

Cornelius W. Wickersham, Jr., Chief Asst. U. S. Atty., Brooklyn, N. Y., and Warren Max Deutsch, Asst. U. S. Atty., Eastern Dist. of New York, New York City (Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

Defendants appeal from judgments of conviction entered against them after a jury trial in the Eastern District of New York. Tomaiolo was convicted on three counts: (1) conspiring with Louis Soviero, Abraham Nirenberg and Salvatore Catapano to rob the State Bank of Suffolk, in Brentwood, New York, on November 29, 1955; (2) bank robbery of $35,033.07 in cash and $6,290. in negotiable travelers checks; and (3) putting in jeopardy the lives of the bank employees during said robbery, in violation of 18 U.S.C.A. §§ 371, 2113, 2113(a) and 2113(d). Soviero was convicted on three counts: (1) for the conspiracy to rob the bank; (2) aiding and abetting the robbery; and (3) as an accessory after the fact, in violation of 18 U.S.C.A. §§ 2, 3, 371 and 2113.

The principal witness for the government was Mrs. Pauline Katz, who had been Abraham Nirenberg's mistress and an active participant in the conspiracy although she was not indicted and was not named as a co-conspirator.

There was ample evidence from which the jury could find the guilt of the defendants: Commencing in early November 1955, Nirenberg and Tomaiolo planned the robbery of the State Bank of Suffolk at Brentwood in Suffolk County, New York, which they finally committed on November 29, 1955. Some days before, Tomaiolo, Nirenberg and Mrs. Katz drove to the vicinity of the bank and Mrs. Katz went in and changed a $10 bill so that she could describe to Tomaiolo and Nirenberg the physical layout of the bank.

Louis Soviero arranged to have two of his nephews steal a black Buick sedan for use as the getaway car. To this car Soviero attached some license plates which his brother had secured under an assumed name. At the last minute Louis Soviero had a change of heart and said that he could not join Tomaiolo and Nirenberg in the robbery, but he did turn over to Nirenberg the stolen Buick. Tomaiolo and Nirenberg then decided to use a submachine gun in place of a third confederate and Tomaiolo arranged for it and Nirenberg picked up and paid for the machine gun the day before the robbery.

On the day of the robbery Tomaiolo, Nirenberg and Mrs. Katz drove out to Central Islip to the vicinity of where Nicholas Tomaiolo, Charles Tomaiolo's brother, worked as a presser in a clothing establishment. Charles Tomaiolo left his car there and Nirenberg took Nicholas Tomaiolo's blue Plymouth. Tomaiolo and Nirenberg then drove to the Brentwood bank in the stolen Buick while Mrs. Katz waited in the blue Plymouth at a point one mile from the bank and three blocks from Nicholas Tomaiolo's home. About 2 P.M., revolver in hand, Nirenberg entered the bank accompanied by a smaller man who brandished a machine gun. Although his confederate wore a snap brim cap and kept his face hidden with a yellow glove so that only his eyes, eyebrows and sideburns were visible, there was an abundance of evidence, particularly the testimony of Mrs. Katz, from which the jury could conclude that the masked robber was Charles Tomaiolo. Nirenberg and Tomaiolo forced the bank manager, two tellers, and a customer into the back room and they took $35,033.07 in cash and negotiable travelers checks totaling $6,290. They then made their getaway in the stolen Buick.

When Tomaiolo and Nirenberg returned to the rendezvous where Mrs. Katz was waiting in the blue Plymouth, they left the stolen Buick in the bushes, changed their clothes and all three drove away in the Plymouth to the nearby home of Nicholas Tomaiolo. In their haste they had no time to remove the tell-tale license plates from the stolen car. Upon arrival at Nicholas Tomaiolo's they were seen by Mrs. Patricia Jennings who lived directly across the street. Here Tomaiolo, Nirenberg and Mrs. Katz got out and went into the house. The following day, November 30, at Nirenberg's apartment, Tomaiolo and Nirenberg divided the loot after giving Soviero $140. Three days later Mrs. Katz delivered $200. more to Soviero for the men who had stolen the Buick. Of this $200. Soviero's nephews, Frank Labocetta and Vincent Boccia, each received $75. from Soviero.

Shortly after the robbery the machine gun was concealed at 70 East 92nd Street, Brooklyn, in the basement apartment of Salvatore Catapano. Sometime in December Nirenberg and Soviero moved the machine gun from one place to another in the apartment and finally when they left New York for Florida in late January they took the machine gun with them in the trunk of Nirenberg's car.

Two months later, when Tomaiolo was taken into custody by the police on January 23, 1956 for a parole violation the nature of which does not appear, Nirenberg and Mrs. Katz moved to a Brooklyn hotel under an assumed name. The next day, they, together with Louis Soviero, left New York and drove to Miami and to Covington, Kentucky and finally to Buffalo, New York where they stayed under various assumed names at Nirenberg's expense.

On February 12, 1956, FBI agents arrested Soviero and Nirenberg in Buffalo. Mrs. Katz immediately became a government witness and after her testimony before the grand jury on February 21, 1956, Tomaiolo and Soviero were indicted together with Salvatore Catapano and Nirenberg. Catapano pleaded guilty to a count charging him with being an accessory after the fact. On the government's motion Nirenberg was tried separately and convicted and on appeal we affirmed the conviction, United States v. Nirenberg, 2 Cir., 242 F.2d 632, certiorari denied 1957, 354 U.S. 941, 77 S.Ct. 1405, 1 L.Ed.2d 1539.

Tomaiolo complains particularly of five errors regarding the admission of evidence and the conduct of the trial: (1) his cross-examination as to certain parole violations as an attack on his credibility; (2) the cross-examination of his brother, Nicholas Tomaiolo, to show that the witness had claimed his Fifth Amendment privilege when questioned before the grand jury; (3) the cross-examination of Nicholas Tomaiolo regarding A.W.O.L. violations while he was serving in the Army; (4) the action of the District Judge in moving the trial some sixty miles to take the testimony of the government witness, Mrs. Patricia Jennings, in the basement of her home; and (5) the summation of the Assistant United States Attorney wherein he argued that Pauline Katz had told Maurice Edelbaum, Tomaiolo's attorney, that Tomaiolo was guilty and that this was the reason that Mr. Edelbaum refused to advise her.

Soviero complains of three errors: (1) the government's repeated allusions to his criminal record; (2) the action of the District Judge in compelling the witness Eileen Calvo to testify despite her claim of privilege under the Fifth Amendment, which claim of error we do not find necessary to discuss in view of our disposition of Soviero's appeal; and (3) the government's refusal to turn over certain Federal Bureau of Investigation reports to Soviero for purposes of cross-examination of FBI Agent Liddy, which we need not consider in view of 18 U.S.C. A. § 3500 recently enacted into law after the decision in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103.

The Defense

Charles Tomaiolo took the stand in his own behalf and denied any participation whatsoever in the robbery or any knowledge of it. He stated that on the day of the robbery, November 29, he was at home suffering from ulcers and he produced witnesses to support his alibi — a woman who testified she was nursing his mother-in-law at the time and a friend of his mother-in-law. The testimony of the nurse was rebutted in part by the mother-in-law's doctor who was called by the government.

Charles Tomaiolo denied ever having been to his brother's home with Nirenberg and Mrs. Katz. He admitted that he had known Nirenberg since they had been in state prison together in about 1945, that he had met Mrs. Katz and that he had seen both Nirenberg and Mrs. Katz on numerous occasions.

In addition to this evidence, Charles Tomaiolo's brother, Nicholas, took the stand and testified that the appellant, Charles Tomaiolo, Nirenberg and Mrs. Katz had not visited his home on the evening of the robbery and that they had not borrowed his car. He testified that Nirenberg and Mrs. Katz had never visited his home although he admitted that they had come out to see him at his place of business to buy some coats.

Louis Soviero did not take the stand and called no witnesses in his defense.

I. Errors as to the defendant Charles Tomaiolo

A. The cross-examination of the defendant Charles Tomaiolo

Charles Tomaiolo complains that the Court permitted cross-examination about acts which he had allegedly committed while confined to prison for a previous offense, about acts in violation of the rules of the New York State Parole Board while he was on parole, and about his association with persons who had criminal records. In our opinion all of this evidence was erroneously admitted. We also find numerous other errors with respect to the conduct of the Assistant United States Attorney in cross-examining Tomaiolo, and with respect to the admission of evidence. We do not hold that any one of these errors by itself would require a reversal of Tomaiolo's conviction. What we do hold is that in the aggregate these errors made it impossible for the defendant to be fairly tried.

First, after...