United States v. Zannino, 72-1153.

• Decision Date: 07 November 1972
• Docket Number: No. 72-1153.,72-1153.
• Citation: 468 F.2d 1299
• Parties: UNITED STATES of America, Appellee, v. Ilario ZANNINO et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

468 F.2d 1299 (1972)

UNITED STATES of America, Appellee, v. Ilario ZANNINO et al., Defendants, Appellants.

No. 72-1153.

United States Court of Appeals, First Circuit.

Heard September 12, 1972.

Decided November 7, 1972.

Joseph J. Balliro and Francis J. DiMento, Boston, Mass., with whom Dimento & Sullivan, Balliro & Woodrow, Boston, Mass., Robert V. Mulkern, Fusaro & Fusaro, Worcester, Mass., and Ronald J. Chisholm, Boston, Mass., were on briefs for defendants-appellants.

Edward F. Harrington, Special Atty., Dept. of Justice, with whom Joseph L. Tauro, U.S. Atty., and Albert F. Cullen, Jr., Special Atty., Dept. of Justice, were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

McENTEE, Circuit Judge.

Appellants Zannino, Balliro, Limone, and Strauss were convicted for transporting or aiding and abetting the transport of goods in interstate commerce knowing the same to have been stolen. Appellants filed a motion for new trial based upon newly discovered evidence. This motion was denied. In United States v. Strauss, 443 F.2d 986 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971)¹ we affirmed this denial and the underlying convictions. Shortly thereafter appellants filed a second motion for new trial based upon alleged additional newly discovered evidence. The trial court also denied this motion and these appeals follow.

This case stems from the robbery of a Boston jewelry store on March 24, 1966, by Erwin Soroko and Charles Lombardi. After the robbery Lombardi, Soroko, and his girl friend, Joanne, hid the jewelry in a New Hampshire cottage. Soroko was subsequently convicted in state court for his role in the robbery and in 1970 he pleaded guilty in federal court to interstate transportation of stolen jewelry.²

Soroko and Joanne were the government's chief witnesses in the instant case. At trial Soroko testified that on April 7, 1966, at "around 1 o'clock" in the afternoon he conferred with Balliro at the Intermission Lounge in Boston and offered him a share of the proceeds if he would find a buyer for the jewelry. Shortly thereafter Balliro told Soroko that Zannino was interested. Around 3:00 or 4:00 p. m. that same day Zannino and Limone came to the lounge and met with Soroko. Balliro was also present. They agreed that Zannino's appraiser, Strauss, would examine the merchandise and on April 8 Soroko, Balliro, and Strauss drove to the New Hampshire cottage. After brief negotiations, Strauss and Soroko reached an agreement on price and the threesome returned to Boston with the jewelry that afternoon. On this evidence the jury found the appellants guilty as charged.

Appellants' first motion for new trial was based upon a newly discovered notebook entry which placed the time of an April 7 meeting between Soroko, State Police Lieutenant James DeFuria and Boston Police Officers Timmons and Brooks at Murray Alpert's Buy-Rite market at 3:30 p. m. This notation directly contradicted Soroko's testimony that he had been discussing the sale of the stolen goods with Zannino and Limone at the Intermission Lounge at that time. The evidence adduced at the hearing on this motion indicated that on April 7 DeFuria, Timmons, and Brooks travelled to the Buy-Rite market sometime after attending a morning hearing at the Boston Municipal Court involving Lombardi. Timmons, the owner of the notebook, did not recall whether he made the entry that afternoon or on the following morning. Only Lieutenant DeFuria independently recalled the incident and he testified that it occurred "anytime after 12 o'clock to 1:00, 1:30 at the latest." Soroko, as corroborated by Joanne, testified that they had arrived at the market between 11:00 and 11:30 that morning. He claimed to have spent fifteen to twenty minutes there and then to have made a fifteen to twenty minute drive to Joanne's home in Winthrop where she made lunch for her children. School records indicated that the children had returned to school by 12:45 p. m. On this evidence the court concluded that the notebook entry was inaccurate and denied the motion.

Appellants next filed the motion for new trial which is the subject of the instant appeal. The alleged newly discovered evidence which supports this motion is Lieutenant DeFuria's refreshed recollection of his activities of April 7. As he now remembers, he agrees with the notebook entry that the market incident occurred at approximately 3:30 p. m. His recollection is corroborated to some extent by that of Detective Sergeant Crowley.

At the hearing on this motion, DeFuria testified that his memory had been triggered by reading Crowley's name in his own testimony in the trial transcript.³ As set forth in his affidavit of November 16, 1971, DeFuria recalled the following events of April 7. He remembered leaving Boston Municipal Court with Crowley shortly after twelve noon, walking through downtown Boston to the Radar Restaurant, and Crowley declining his luncheon offer. After eating lunch, he recalled walking to Crowley's office in the District #2 police station. There Timmons and Brooks joined him and the three of them decided to interview Joanne and Alpert. They proceeded to Alpert's market in an unmarked car. Timmons and Brooks questioned Alpert for ten or fifteen minutes and after learning that Soroko was expected, returned to the car. There they waited "a good thirty minutes or more" until Soroko arrived. DeFuria also stated that he read the first three digits of Soroko's registration plate to Timmons as Soroko drove by.⁴ Brooks interviewed Joanne for ten or fifteen minutes while Soroko was in the market. Thereafter the three officers lost Soroko's car in traffic. On these facts DeFuria concluded that the notebook entry fixing the time of the meeting at the market as 3:30 p. m. was accurate. Sergeant Crowley's affidavit corroborated DeFuria with regard to the walk from Municipal Court to the restaurant, his refusal to join DeFuria for lunch, the meeting in his office, and the subsequent departure of Timmons, Brooks, and DeFuria in an unmarked car.

On cross-examination DeFuria admitted that although his memory had been refreshed in February 1971, he did not reveal this to anyone for four months and then disclosed it only to defense counsel.⁵ He also admitted that he had attempted to refresh Crowley's memory at the insistence of Attorney DiMento who represented the appellant Zannino. The government introduced a witness fee list⁶ for April 7, 1966, which included DeFuria's signature and thus demonstrated that, contrary to his affidavit, he had collected a witness fee at some time on the day in question. DeFuria initially stated that he had no recollection of this event. After a brief court recess, however, he claimed that he now recalled this event and proceeded to testify about it in great detail. The government also produced a semi-monthly report in which DeFuria claimed supper expenses for June 18, 1971, an evening on which he admitted Attorney DiMento had purchased his dinner for him. In addition, a number of discrepancies came to light between what he recalled at the instant hearing and a statement he had given to the FBI in October 1971. Sergeant Crowley testified on cross-examination that he had "partial recall" of the events of April 7, but his testimony demonstrated that he had no memory of the events other than those which DeFuria had discussed with him.⁷

Appellants' primary contention is that, in light of DeFuria's refreshed recollection, Soroko's testimony regarding the events which he claimed took place between 11:00 a. m. and 12:45 p. m. on April 7 could not possibly have been true because it would be impossible for all of the events which he and the police officers described to have occurred within a one hour and forty-five minute period.⁸ In addition, appellants again raise the question of the possible accuracy of the 3:30 p. m. notebook entry.⁹ The overriding thrust of these arguments is, of course, that if this evidence had been introduced at trial it might have cast some doubt on Soroko's credibility.

The trial court, however, chose not to believe the refreshed recollection of DeFuria and Crowley. In denying the motion, it made the following findings: (1) that the officers' refreshed recollection was not a real one but a reconstruction of what might have happened if the 3:30 p. m. notebook entry were accurate; (2) that the facts testified to by the officers did not prove that Soroko had testified falsely when he described the meetings in the lounge on April 7, 1966; and (3) that refreshed recollection under these circumstances did not constitute newly discovered evidence.¹⁰

The question on appeal is whether the court abused its discretion in denying appellants' second motion. As we said in United States v. Leach, 427 F.2d 1107, 1111 (1st Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 95, 27 L.Ed. 2d 59 (1970), "motions for new trial are directed to the trial court's discretion. Under its broad power, the court may weigh the evidence and consider the credibility of the witnesses. The remedy is sparingly used. . . ." In light of DeFuria's proven penchant for reconstruction, the documentary evidence (the witness fee list) which contradicted his affidavit, the inconsistencies between his sworn statement and his statement to the FBI, and the fact that Crowley had no memory of any of the events of April 7 other than those which DeFuria had discussed with him, we find that the evidence supports the court's conclusion as to the officers' lack of credibility. Therefore, we conclude that no abuse of discretion occurred in the denial of the motion.

Little need be said with regard to appellants' contention that the government...