United States v. Vita

• Decision Date: 28 August 1961
• Docket Number: Docket 26546.,No. 277,277
• Citation: 294 F.2d 524
• Parties: UNITED STATES of America, Appellee, v. Philip VITA and Jerald Carmel, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

294 F.2d 524 (1961)

UNITED STATES of America, Appellee, v. Philip VITA and Jerald Carmel, Appellants.

No. 277, Docket 26546.

United States Court of Appeals Second Circuit.

Argued March 10, 1961.

Decided August 28, 1961.

James M. Catterson, Jr., Asst. U. S. Atty., New York City (Cornelius W. Wickersham, Jr., U. S. Atty., Eastern District of New York, Brooklyn, N. Y., on the brief), for appellee.

Daniel H. Greenberg, New York City (Anthony F. Marra, New York City, on the brief), for appellant Philip Vita.

Solon B. Hanft, Brooklyn, for appellant Jerald Carmel.

Before LUMBARD, Chief Judge, MAGRUDER^* and WATERMAN, Circuit Judges.

LUMBARD, Chief Judge.

Philip Vita and Jerald Carmel appeal from judgments of conviction entered in the Eastern District of New York after the defendants were found guilty by a jury on all three counts of an indictment which charged them with (1) robbing a national bank, (2) putting in jeopardy the lives of persons by the use of a dangerous weapon while committing the robbery, and (3) conspiring to commit the robbery. 18 U.S.C. §§ 2113, 371. The district judge sentenced both appellants to 15 years' imprisonment on Count Two and 5 years' imprisonment on Count Three, the sentences to be served concurrently. No sentence was imposed on Count One, which was held to be merged with Count Two.

The robbery was committed at 9:20 a. m. on September 18, 1958, when two men entered the East Gate Plaza Branch Office of the Franklin National Bank, Levittown, in the Eastern District of New York, and robbed it of $11,281 at gunpoint, firing one shot during their brief visit. The appellant Vita does not challenge the sufficiency of the evidence to establish that he was one of the robbers; Raymond Pierson, a co-defendant who pleaded guilty, testified at the trial that he was the other. Pierson also testified that the appellant Carmel waited outside the bank in the stolen getaway car, and that after Vita and Pierson left the bank they were driven from the scene by Carmel. Pierson also testified in detail with respect to Carmel's part in planning the robbery and making preparations for it. Pierson's testimony was corroborated by Jane Oakley, Vita's woman friend, who related on the stand what had happened on the afternoon and evening of the day of the robbery and told of Carmel's admission that he had participated in the crime.

I. Carmel

The evidence of Carmel's guilt was surely adequate to permit the jury to conclude that he was guilty beyond a reasonable doubt. Testimony given by an accomplice need not be corroborated to support a conviction, e. g., United States v. Moran, 2 Cir., 1945, 151 F.2d 661, 167 A.L.R. 403; cf. United States v. Stromberg, 2 Cir., 268 F.2d 256, 272, certiorari denied 1959, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102. In this case, the district judge charged the jury that "the testimony of an accomplice * * * should be taken with great caution and should be scrutinized very carefully by you." This afforded more than adequate safeguards to insure close examination of Pierson's story by the jury.

Carmel also contends that two statements made by Pierson in the course of his testimony so unfairly prejudiced the jury against Carmel that a mistrial should have been granted. During his direct examination Pierson was asked about a meeting he had with Vita, Carmel and a friend of theirs some time after the robbery:

"Q. Do you recall what Phil Vita said at that time, if anything? A. Yes sir.

"Q. What did he say? A. He discussed his trip from New York to Miami.

"Mr. Aldino Attorney for Carmel: No, your Honor, he is not telling us the conversation.

"The Court: Yes, yes.

"Just tell us, as far as you can remember, in substance, what he said to you, what you said —

"The Witness: Yes, sir.

"Phil said that we had a rough ride coming down, had trouble with the car. He said that Jerry did some of the driving, Jerry Carmel, and that the car was being repaired, that they didn\'t have the car with them at the time, also the fact that was brought out —

"Mr. Tonkonogy Attorney for Vita: If your Honor pleases, not the fact which was brought out, who said what, if he recalls.

"A. Jerry Carmel said that he had a deal of bringing narcotics in from Havana, from Cuba."

Carmel's counsel immediately moved for a mistrial, and the court instructed the jury to disregard the statement completely and ordered that it be stricken "as irrelevant and incompetent." Under the circumstances, the defendants were entitled to nothing more. The allegedly prejudicial remark had been drawn from the witness after counsel for both defendants interrupted his testimony and asked that he be more specific with regard to what was said. It appears from the record that it was in response to the demand that he reconstruct the conversation and tell "who said what" that the witness uttered the damaging statement. The instruction to the jury to disregard the remark was clear and unequivocal. In the absence of any showing that the prosecutor anticipated or induced the prejudicial statement, the warning to the jury cured the error. United States v. Stromberg, supra, 268 F.2d at page 269; United States v. Giallo, 2 Cir., 1953, 206 F.2d 207, affirmed 1954, 346 U.S. 929, 74 S.Ct. 319, 98 L.Ed. 421.

On cross-examination Vita's counsel sought to impeach Pierson's credibility by uncovering his criminal record:

"Q. And of what crime were you convicted? A. What crime?

"Q. Yes. A. Taking funds from a bank.

"Q. What do you mean by `taking funds from a bank?\' A. Robbery.

"Q. Armed robbery? A. No, sir, it wasn\'t armed robbery.

"Q. What kind of a robbery? A. Jerry and I had toy pistols."

This last remark of Pierson's clearly referred to Carmel — who had been identified by various witnesses as "Jerry" — and implicated Carmel in another bank robbery than the one for which he was standing trial. Carmel's counsel again moved for a mistrial and the motion was denied with a direction to the jury that the statement be disregarded as having "nothing at all to do with this case." Since the prejudicial statement had been elicited on cross-examination at the instance of Vita's counsel and the judge's instruction to the jury was adequate, the fleeting reference to Carmel's participation in another bank robbery does not warrant a new trial. See United States v. Curzio, 3 Cir., 1950, 179 F.2d 380. The admissible evidence of Carmel's guilt was substantial, and it is unlikely that Pierson's mention of Carmel's other activities played any role in the jury's return of a guilty verdict. United States v. Tramaglino, 2 Cir., 197 F.2d 928, certiorari denied 1952, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670.

Another contention raised by Carmel on this appeal is that he was prejudiced by reason of two articles that appeared in Long Island newspapers on the second day of the trial. One of the articles was published in "Newsday" and contained information concerning Carmel's conviction for bank robbery in Miami, Florida. The other account was in the "Long Island Daily Press" and made no reference to any convictions. It was limited to a description of the charges made against the defendants and it reported that the police expected Pierson, "a third man * * * who pleaded guilty to driving the getaway car," to testify for the prosecution.

When the articles were called to the court's attention by Carmel's counsel, the judge asked the members of the jury whether they had read the articles in either of the two newspapers. Two jurors replied that they had. One had read only the article appearing in "Newsday" and the other had read only the account published in the "Long Island Daily Press." Both denied that they had communicated with any other jurors with regard to the contents of the newspaper accounts, and both affirmed that they could judge the case fairly despite having read the newspaper stories. The judge then held that the article appearing in the "Long Island Daily Press" was "innocuous" and could not have influenced the juror who had read it. He excused the juror who had read the article in "Newsday," however, and substituted an alternate.

In light of Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, the substitution of an alternate juror was necessary since the "Newsday" account contained prejudicial information. But we agree with the district judge that the story in the "Long Island Daily Press" could not have prejudiced the defendant since it contained no inadmissible or improper matter. The trial judge asked the jury collectively whether anyone else had read the newspaper accounts. No one had. This procedure adequately protected the rights of the defendant. See United States v. LaBarbara, 2 Cir., 1960, 273 F.2d 547.

Carmel also attacks the judge's charge to the jury alleging that his summary of the evidence was weighted in favor of the prosecution. This claim is entirely devoid of substance. We have read the charge and find it to be an accurate and fair account of the testimony given at the trial. The evidence incriminating the defendants was considerable and there was little offered in their defense. The trial judge is surely not required to allocate equal time in his summary of the evidence; he is necessarily governed by what has happened at the trial. The trial was conducted most fairly with all the safeguards to which the defendants were entitled.

II. Vita

The appellant Vita assigns one principal ground for reversal: He contends that certain damaging admissions made by him on December 21, 1959 were uttered at a time when he was being held in custody by the Federal Bureau of Investigation during an "unnecessary delay" in bringing him before a Commissioner. Federal Rule of Criminal Procedure 5(a) 18 U.S.C. Since the admissions were introduced into evidence over objections made by Vita's counsel, Vita maintains that he is entitled to a new trial under the principle set forth in Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct....