Appendix — Marrale v. United States

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Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 206, 229—August Term, 1982

(Argued August 30, 1982 — Decided December 13, 1982)

Docket Nos. 82-1182, 82-1184

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

U.

FRANK MARRALE AND ALPHONSE MARRALE,

Defendants-Appellants.

Before: KEARSE, CARDAMONE, AND WINTER,

Circuit Judges.

Appeals from judgments of conviction entered in the

United States District Court for the Eastern District of

New York, after a trial before Henry Bramwell, Judge,

and a jury, for theft from a foreign shipment in violation

of 18 U.S.C. §§ 659 and 2, bank larceny in violation of

18 U.S.C. §§ 2113(b) and 2, and conspiracy in violation

of 18 U.S.C. § 371.

Affirmed.

DIANE F. GIACALONE,

Assistant United States Attorney,

Brooklyn, New York

(Edward R. Korman, United States

Attorney for the Eastern District of

New York, Mary McGowan Davis,

Assistant United States Attorney,

Brooklyn, New York, on the brief),

for Plaintiff-Appellee.

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Appendix A - Opinion of United States Court of Appeals

MARK F. POMERANTZ,

Brooklyn, New York,

(Lewis D. Cohen, Ronald P. Fischetti,

Brooklyn, New York, on the brief),

for Defendant-Appellant

Frank Marrale.

JAY GOLDBERG,

New York, New York,

for Defendant-Appellant

Alphonse Marrale.

KEARSE, Circuit Judge:

Defendants Frank Marrale (“Frank”) and his son,

Alphonse Marrale (“Alphonse”), appeal from judgments

of conviction entered in the United States District Court

for the Eastern District of New York, after a jury trial

before Henry Bramwell, Judge. Frank was convicted of

theft from a foreign shipment in violation of 18 U.S.C.

§§ 659 and 2 (1976) and bank larceny in violation of 18

U.S.C. §§ 2113(b) and 2 (1976). Frank and Alphonse

were convicted of conspiracy to steal and possess

moneys stolen from a foreign shipment, in violation of

18 U.S.C. § 371 (1976). Frank was sentenced to ten

years’ imprisonment and a $5,000 fine on the foreign

shipment theft count, ten years’ imprisonment and a

$5,000 fine on the bank larceny count, and five years’

imprisonment and a $10,000 fine on the conspiracy

count, the jail terms to be served consecutively and the

fines to be cumulative. Alphonse was sentenced to the

custody of the Attorney General for an indeterminate

period of treatment and supervision as a young adult

offender, pursuant to 18 U.S.C. 5 5010(b) (1976). Finding

no merit in the defendants’ challenges to their convic-

tions, we affirm.

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Appendix A - Opinion of United States Court of Appeals

I, BACKGROUND

Since neither defendant challenges the sufficiency

of the e idence, a brief summary of the evidence at trial,

taken in the light most favorable to the government, will

suffice. In 1981, Frank was employed as a driver by

Armored Express, Inc. (Armored), a firm in the busi-

ness of transporting shipments of money for commer-

cial companies and banks. According to Frank's co-

worker Steve Mui, who testified for the government, in

June 1981 Frank and Mui began to discuss the possi-

bility of stealing bags of money they were to transport to

John F. Kennedy International Airport. Frank stated

that he knew three people who could prepare facsimile

bags to be substituted for the bags of cash in order to

facilitate the theft. Frank did not identify his partners

but told Mui that if anything went wrong Mui should

contact Alphonse, Frank's 19-year old son, who would

know “the business” and the people with whom Frank

was doing business. In November 1981, Frank and Mui

executed their scheme, stealing a shipment of $2 million

being sent by Republic National Bank to Kennedy Air-

port for transport to Seoul, Korea. Frank and Mui were

to receive $400,000 apiece after the money was “laun-

dered,” with the remaining $1.2 million going to Frank’s

partners who had provided the bogus bags and to

persons who would launder the money.

After the theft was discovered, Mui was questioned

and was asked to take a lie detector test. Mui told Frank

he was nervous about the test, and Frank told Mui to get

pills from Alphonse to slow down his reactions and help

him pass the test. Mui obtained two pills from Alphonse

which he took in preparation for the test. Notwithstand-

ing the medicinal aid, Mui believed he had failed the lie

detector test, and, after consulting an attorney, he

agreed to cooperate with the government in return for

not being prosecuted.

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Appendix A - Opinion of United States Court of Appeals

Following the agreement, Mui had several conversa-

tions, which he taped, with Frank concerning arrange-

ments for Mui to collect his $400,000. Mui eventually

was paid $300,000 (which he turned over to the FBI) and

continued to try to collect the remaining $'00,000. In

these conversations Frank expressed apprehension of

detection by the FBI and several times suggested that

Alphonse might make the delivery of the $100,000, since

no one was following Alphonse. Finally, Mui arranged

to have Frank call him at a certain telephone booth on

December 9, 1981, at 4:00 p.m. The call was made,

however, not by Frank but by Alphonse, who told Mui

“we gonna lay low for awhile” because of people follow

ing my father.” Alphonse stated that he would call Mui

the next day when “I'll know...what the rest of the

story is.“ This conversation too was taped.

Frank was arrested in the wee hours of the morning

of December 10, 1981. At approximately 7:00 on the

same morning, federal agents went to the apartment of

Frank Marrale, where Alphonse lived, and there ar-

rested Alphonse. In response to the agents’ questions

about the $2 million theft and about Mui, Alphonse

stated that he did not know Mui and that he had not

spoken to anyone named Steven Mui.

In a five-count indictment, Frank and Alphonse

were charged with conspiring to steal and possess

money stolen from a foreign shipment, in violation of

18 U.S.C, § 371 (count 1); Frank was charged with steal-

ing money from a foreign shipment, in violation of 18

U.S.C. §§ 6591 and 2 (count 2), and with larceny from a

' 18 U.S.C, § 659 provides, in pertinent part, as follows:

Whoever embezzles, steals, or unlawfully takes, carries

away, or conceals, or by fraud or deception obtains from any

pipeline syotem, railroad car, wagon, motortruck, or other

vehicle, or from any tank or storage facility, station, station

house, platform or depot or from any steamboat, vessel, or

wharf, or from any aircraft, air terminal, airport, aircraft

(Footnote continued on following page.)

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Appendix A - Opinion of United States Court of Appeals

bank whose deposits were insured by the Federal De-

posit Insurance Corporation (“FDIC”), in violation of 18

U.S.C, §§ 2113(b)* and 2 (count 4); Alphonse was charged

with aiding and abetting a theft from a foreign ship-

ment, in violation of 18 U.S.C. §§ 659 and 2 (count 3),

and with airing and abetting a larceny from a bank

whose deposits were insured by FDIC, in violation of 18

U.S.C. §§ 2113(b) and 2 (count 5). At the close of the

government's case counts 3 and 5 against Alphonse

were dismissed pursuant to Fed. R. Crim. P. 29. The jury

found the defendants guilty as charged on all of the

remaining counts. As described above, Frank Marrale

was sentenced to serve consecutive prison terms and

pay cumulative fines on counts l, 2, and 4. Alphonse

was sentenced to an indeterminate prison term as a

youthful offender.

(Footnote continued from preceding page.)

terminal or air navigation favility with intext to convert to his

own use any goods or chattels moving as or which are a part of

or which constitute an interstate or foreign shipment of

freight, express, or other property; or

Whoever buys or receives or has in his possession any such

goods or chattels, knowing the same to have been embezzled or

stolen;

Shall in each case be fined not more than $5,000 or im-

prisoned not more than ten years, or both;.

* 18 U.S.C, § 2113(b) provides, in pertinent part, as follows:

Whoever takes and carries away, with intent to steal or

purloin, any property or money or any other thing of value

exceeding $100 belonging to, or in the care, custody, control,

managemont, or possession of any bank, credit union, or any

savings and loan association, shall be fined not more than

$5,000 or imprisoned not more than ten years, or both;.

Section 2113(f) defines the term “bank” as follows:

As used in this section the term “bank” means any mem-

ber bank of the Federal Reserve System, and any bank, bank-

ing association, trust company, savings bank, or other bank-

ing institution organized or operating under the laws of the

United States, and any bank the deposits of which are insured

by the Federal Deposit Insurance Corporation.

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Appendix A · Opinion of United States Court of Appeals

On appeal, Frank challenges the imposition of con-

— tences on counts 2 and 4, contending that

d not intend to authorize cumulative penal-

— 1 §§ 659 and 2113(b) for theft from a foreign

shipment and theft from a bank, respectively, in the con-

text of a single criminal transaction such as that under-

taken here. Alphonse challenges his conviction on the

grounds that his statements following his arrest should

not have been admitted in evidence, and that certain

statements by the prosecutor in summation deprived

him of a fair trial. Finding no merit in appellants’ con-

tentions, we affirm the convictions,

II. FRANK MARRALE

Prior to trial, Frank Marrale asserted that counts 2

and 4 were multiplicious and moved to require the

government to elect whether it would proceed on count 2,

charging theft from a foreign shipment, or count 4,

charging bank larceny.’ The contention that the counts

were multiplicious rested on the premise that Congress

did not intend to authorize cumulative penalties for a

person who violated both § 659 and § 2113(b) in a single

criminal transaction. The district court denied the mo-

tion, relying on Blockburger v. United Staes, 284 U.S.

299 (1932). In Blockburger, the Supreme Court stated

that “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test

to be applied to determine whether there are two of-

fenses or only one, is whether each provision requires

proof of a fact which the other does not.” Id. at 304. The

district court here concluded that counts 2 and 4 were

not multiplicious because each offense required proof of

a fact that the other did not.

Alphonse made a similar motion with respect to counts 3 and 5

which charged him with aiding and abetting both the theft from

interstate commerce and the bank larceny. Since counts 3 and 5 were

dismissed at the close of the government's case the multiplicity issue

became moot with regard to Alphonse.

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Appendix A - Opinion of United States Court of Appeals

Frank concedes on appeal, as he did below, that

counts 2 and 4 against him are not multiplicious under

the Blockburger test, but he argues that that test is

inapplicable. He contends that the Federal Bank

Robbery Act, 18 U.S.C. § 2113,“ is a comprehensive

The operational provisions of § 2113 are as follows:

(a) Whoever, by force and violence, or by intimidation,

takes, or attempts to take, from the person or presence of

another any property or money or any other thing of value

belonging to, or in the care, custcdy, control, management,

or possession of, any bank, credit union, or any savings and

loan association; or

Whoever enters or attempts to enter any bank, credit

union, or any savings and loan association, or any building

used in whole or in part as a bank, credit union, or as a savings

and loan association, with intent to commit in such bank,

credit union, or in such savings and loan association, or build-

ing, or part thereof, so used, any felony affecting such bank,

credit union, or such savings and loan assuciation and in

violation of any statute of the United States, or any larceny—

Shall be fined not more than $5,000 or imprisoned not

more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or

purloin, any property or money or any other thing of value

exceeding $100 belonging to, or in the care, custody, control,

management, or possession of any bank, credit union, or any

savings and loan association, shall be fined not more than

$5,000 or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or

purloin, any property or money or any other thing of value not

exceeding $100 belonging to, or in the care, custody, control,

management, or possession of any bank, credit union, or any

savings and loan association, shall be fined not more than

$1,000 or imprisoned not more than one year, or both.

(c) Whoever receives, possesses, conceals, stores, barters,

sells or disposes of, any property or money or other thing of

value knowing the same to have been taken from a bank, credit

union, or a savings and loan association, in violation of sub-

section (b) of this section shall be subject to the punishment

provided by said subsection (b) for the taker.

(d) Whoever, in committing, or in attempting to commit,

any offense defined in subsections (a) and (b) of this section,

assaults any person, or puts in jeopardy the life of any person

(Footnote continued on following page.)

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Appendix A - Opinion of United States Court of Appeals

scheme that provides the exclusive remedy for conduct

falling fully within its coverage and that an independ-

ent provision such as § 659, see note 1 supra, may not be

invoked to fragment what was in fact a single criminal

transaction. We are unpersuaded by Frank’s reasoning

and the cases on which he relies.

The recent teaching of the Supreme Court mandates

a three-step inquiry by which the courts may determine

whether Congress intended to authorize multiple

punishments for conduct that violates two statutory

provisions. See Albernaz v. United States, 450 U.S. 333,

336-42 (1981). The starting point for the analysis is the

language of the provisions. If the offenses charged are

set forth in different statutes or in distinct sections of a

statute, and each section unambiguously authorizes

punishment for a violation of its terms, it is ordinarily

to be inferred that Congress intended to authorize

punishment under each provision. Id. at 336. The

court’s next task is to determine whether the two of-

fenses are sufficiently distinguishable from one another

that the inference that Congress intended to authorize

multiple punishments is a reasonable one. In making

this determination the Blockberger test is employed,

and if the court finds that each offense requires proof

of a fact that the other does not, it should presume that

multiple punishments are authorized. Id. at 337-40. The

final step is to test this presumption against the legisla-

(Footnote continued from preceding page.)

by the use of a dangerous weapon or device, shall be fined not

more than $10,000 or imprisoned not more than twenty-five

years, or both.

(e) Whoever, in committing any offense defined in this

section, or in avoiding or attempting to avoid apprehension for

the commission of such offense, or in freeing himself or

attempting to free himself from arrest or confinement for such

offense, kills any person, or forces any person to accompany

him without the consent of such person, shall be imprisonsd

not less than ten years, or punished by death if the verdict of

the jury shall so direct.

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Appendix A - Opinion of United States Court of Appeals

tive history of the provisions to discover whether a con-

trary congressional intention is disclosed. If the legis-

lative history either reveals an intent to authorize cumu-

lation of punishments or is silent on the subject, the

court should conclude that Congress intended to auth-

orize multiple punishments. Id. at 340-42.5

Pursuit of this analysis in the present case leads us

to the conclusion that Congress authorized multiple

punishments for the crimes of bank larceny and theft

from a foreign shipment. Sections 659 and 2113(b)

appear in distinct chapters of the Criminal Code. Each

unequivocally interdicts certain acts. Each section pro-

vides a penalty for violation of its provisions, in each

case a maximum of ten years’ imprisonment and a

$5,000 fine. There is no ambiguity in the language of

either section to intimate that punishment under that

section was not authorized; and there is no suggestion in

the language that either section supersedes or is sub-

ordinate to the other.

Further, as the district court found, the Blockburger

test is easily satisfied here. Section 659 requires proof

that the theft was from an interstate or foreign ship-

ment; no such interstate connection need be proven to

establish a violation of § 2113. Section 2113(b), on the

other hand, requires proof that the property stolen was

property in the care, custody, control, management, or

possession of a bank that is a member of the Federal

Reserve System, or is organized under the laws of the

United States, or has its deposits insured by FDIC; no

such bank connection need be proven to establish a vio-

lation of § 659. Accordingly, unless the legislative

history evinces a contrary intent, Congress must be

5 The Albernaz Court also stated that “the question of what

punishments are constitutionally permissible is not different from

the question of what punishment the Legislative Branch intended

to be imposed. Where Congress intended...to impose multiple punish-

ments, imposition of such sentences does not violate the Constitu-

tion.” 450 U.S. at 344.

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Appendix A - Opinion of United States Court of Appeals

presumed to have intended to authorize cumulative

punishments for violations of §§ 659 and 2113(b).

We are aware oy no such contrary indication. The

legislative histories of § 2113, which was enacted two

decades after the first version of § 659, see infra, and of

amendments to § 659 that postdated § 2113 are silent as

to the relationship between the two sections and as to

whether consecutive sentences were thought to be per-

missible.“ Frank has called to our attention no con-

gressional reports or debates in connection with either

section that indicated in any way that the Federal Bank

Robbery Act was intended to supplant § 659 or its pre-

decessor section in any circumstances. Under the teach-

ing of Albernaz, we must assume from Congress’s

silence that Congress intended to authorize such cumu-

lative punishments as would be consistent with the

Blockburger rule. See Albernaz v. United States, supra,

450 U.S. at 341-42.

The. conclusion that cumulative punishments are

authorized is buttressed by the indications that § 659

and § 2113 were addressed to different goals. See

Albernaz v. United States, supra, 450 U.S. at 343 (in-

ference of congressional intent to authorize cumulative

punishments for a single agreement constituting a con-

spiracy to import marijuana in violation of 21 U.S.C. §

963 (1976) and a conspiracy to distribute it in violation

of 21 U.S.C. § 846 (1976) is supported by the fact that

importation and distribution are “separate evils”). The

* In Prince v. United States, 352 U.S. 322, 325 (1957), the Court

described § 2113 as “a unique statute of limited purpose [with] an

inconclusive legislative history.” The question in Prince was

whether Congress intended to allow the addition of punishment for

a lesser included offense (entry of bank with intent to rob) to the

penalty for the major crime (bank robbery). With respect to that

question the legisiative history was no doubt ambiguous and incon-

clusive; but this has no bearing on the intended coordination be

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Appendix A - Opinion of United States Court of Appeals

of § 659 was enacted in 1913. 18 U.S.C. §

409, Pub. L. No. 62-377, 37 Stat. 670 (1913); see also 18

US. C. 88 410-411, Pub. L. No. 62-377, 37 Stat. 670 (1913).

The congressional debates as to its purpose leave a con-

fused picture, see, e. g. 49 Cong. Rec. 1780-82, 2481

(1913); but the provision was early interpreted as evinc-

ing Congress’s intention not so much to punish lar-

cenies as to protect the integrity of interstate and

foreign commerce, White uv. United States, 273 F. 517

(2d Cir. 1921). Thus, this Court stated that the section

“does much more than extend the crime of larceny to

interstate or foreign shipments....The essential object

of this statute is to create, define, and punish the offense

of abstracting or unlawfully having in possession goods

while in interstate or foreign transit, and thereby inter-

fering with interstate or foreign commerce.” Id. at 518.

See also United States uv. De Normand, 149 F.2d 622, 624

(2d Cir.) (same), cert. denied, 326 U.S. 756 (1945). Over

the years, the statute has been amended to close loop-

holes in its coverage, and was recodified as § 659 in 1946,

Pub. L. No. 79-534, 60 Stat. 656. There has been no indi-

cation, however, that any of the amendments was in-

tended to alter the goal of the section to prevent inter-

ference with interstate and foreign commerce. The early

interpretations in White, supra, and De Normand,

supra, thus remain valid interpretations of § 659 today,

United States v. Padilla, 374 F.2d 782, 786 & n.6 (2d Cir.

1967), and this Court has often reaffirmed those hold-

ings. See United States v. Astolas, 487 F. 2d 275, 279

(2d Cir. 1973) (purpose of § 659 is to protect flow of inter-

state commerce), cert. denied, 416 U.S. 955 (1974); United

States v. Thomas, 396 F.2d 310, 315 (2d Cir. 1968) (same);

United States v. Berger, 338 F.2d 485, 487 (2d Cir. 1964)

(same), cert. denied, 380 U.S. 923 (1965).

The Bank Robbery Act, on the other hand, attempts

principally to achieve a different goal: protection of

financial institutions in which the federal government

has an interest. The legislation was introduced in Con-

gress as an act “to provide punishment for certain

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Appendix A - Opinion of United States Court of Appeals

offenses committed against banks, organized or operat-

ing under laws of the United States, or any member of the

Federal Reserve System.” See e.g., 78 Cong. Rec. 2946

(1934) (Senate); accord 78 Cong. Rec. 133 (1934) (House).

Congress enacted these provisions during the Depres-

sion, in the congressional session immediately follow-

ing that in which it had established FDIC, an agency

which was in part federally funded, to guarantee bank

deposits. It described the bank robbery provisions as a

means of protectſing] the institutions in which [the

Federal Government] is interested.” H.R. Rep. No. 1461,

73d Cong., 2d Sess. 2 (1934). See Way v. United States,

268 F.2d 785, 786 (10th Cir. 1959) (purpose of § 2113(b)

was “to safeguard the stability and integrity of federal

banks” and “to protect and safeguard the financial

stability of the Federal Reserve Bank System and the

members thereof’). Thus, although the legislative

history of § 2113 contains a passing reference to the

fact that bank robbery was often committed by organ-

ized gangsters who fled across state lines, H R. Rep. No.

1461, 73d Cong., 2d Sess. 2(1934), the Congressional

debates centered on how best to protect federal banks,

not on how to protect interstate or foreign commerce,

see, e.g., 78 Cong. Rec. 8132-33 (1934); and no provision

of § 2113 has ever required proof that interstate com-

merce—or interstate flight—was in any way involved.

The divergent concerns leading to enactment of §§

659 and 2113(b) serve to distinguish this case from the

authorities relied on by Frank Marrale. Frank relies on

language in a number of cases, none of which involved

§ 659, to the effect that § 2113 is a comprehensive statute

and that any conduct within its purview is punishable

only under § 2112 and not under other sections that

might also apply. We read those authorities, however, to

stand for the more limited proposition that cumulative

punishments should not be imposed when the other

section that has been violated is viewed as reaching the

very evil that § 2113 was intended to reach. In Simpson

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Appendix A - Opinion of United States Court of Appeals

v. United States, 435 U.S. 6, 10 (1978), for example, the

Supreme Court reversed a judgment imposing consecu-

tive sentences for armed bank robbery in violation of

§ 2113(d) and use of a firearm to commit a felony in

violation of 18 U.S.C. § 924(c) (1976), because both sec-

tions clearly. are addressed to the same concern and

designed to combat the same problem.” In United

States v. Canty, 469 F. 2d 114, 126-29 (D.C. Cir. 1972), the

court invalidated cumulative punishments fcr robbery

by force and violence in violation of § 2113(a) and

assault with a dangerous weapon in violation of D.C.

Code § 22-502 (1967), those two sections being directed

at the same evil; the Canty court upheld, however, cumu-

lative punishments for violation of § 2113(a) and for

possession of a dangerous weapon in violation of D.C.

Code § 22-2304 (1967), because “[t]he prohibition on

carrying a dangerous weapon is designed to serve in-

terests that the federal bank robbery scheme does not

purport to serve.” 469 F.2d at 129. In United States v.

Beck, 511 F.2d 997, 1000 (6th Cir.), cert. denied, 423 U.S.

836 (1975), the court invalidated cumulative punish-

ments for extortion of bank assets in violation of the

Hobbs Act, 18 U.S.C. § 1951 (1976), and bank theft in

violation of § 2113(b). The court doubted that the Hobbs

Act had been intended to reach extortion of bank assets,

but ruled that to the extent that it was so intended, it

would reach precisely the same evil reached by § 2113(b).

The court also noted its agreement with Canty’s af-

firmance of cumulative punishments for violation of §

2113 and another statute with a different goal. See also

United States v. DiGeronimo, 598 F.2d 746, 750 (2d Cir.)

(invalidating cumulative punishments for robbery from

interstate commerce in violation of Hobbs Act, and re-

ceipt of goods stolen from interstate commerce in viola-

tion of § 659 where, on the facts, the Hobbs Act count

was “a functional substitute for a charge under the theft

provisions of section 659,” and there was no basis for

inferring a cotigressional deviation from established

principles that an individual may not be convicted of

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Appendix A - Opinion of United States Court of Appeals

both robbery and receipt of the goods stolen’), cert.

denied, 444 U.S. 886 (1979); United States v. Snell, 550

F.2d 515 (9th Cir. 1977) (invalidating cumulative punish-

ments for attempted extortion of bank assets in viola-

tion of Hobbs Act and conspiracy to commit bank

robbery in violation of §§ 371, 2113(a)).

In sum, we conclude that the differing concerns

evident in Congress’s enactment of §§ 6&9 and 2113,

respectively, support the inference drawn from the lan-

guage of the sections, the different elements of the

offenses, and the legislative history, that Congress in-

tended to authorize cumulative penalties for a trans-

action that violated both sections. Accordingly we see

no basis for vacating Frank Marrale’s sentences on

counts 2 and 4.

III. ALPHONSE MARRALE

Alphonse Marrale challenges his conviction on two

grounds. He contends that his post-arrest statements

were inadmissible because they were involuntary, and

that the prosecutor deprived him of a fair trial by mak-

ing improper remarks during her summation. We reject

both contentions.

A. Post-Arrest Statements

Alphonse contends that his conviction must be set

aside because of the improper receipt in evidence of false

statements he made to federal agents after his arrest.

He challenges these statements principally on the

ground that they were involuntarily made because the

agents tricked him into making the statements by ques-

tioning him while he was still sleepy, by failing to in-

form him of the charges against him, and by falsely tell-

ing him that his father had implicated him in the theft.

See Heflin u. United States, 358 US. 415 (1959); United States u.

Gaddis, 424 U.S. 544 (1976).

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Appendix A - Opinion of United States Court of Appeals

Alphonse raised this contention in a pretrial motion

to suppress his false statements, and an evidentiary

hearing was held on the motion. Several special agents

of the FBI described the entry into the Marrale apart-

ment and the arrest and questioning of Alphonse. Al-

phonse was informed in the apartment that he was

under arrest for conspiracy to steal $2 million from an

armored truck service. At that time he was neither

given Miranda warnings nor questioned. Alphonse was

then driven to an FBI office, and during that drive, prior

to any interrogation, he was given Miranda warnings.

In the questioning that ensued, Alphonse denied know-

ing Mui—one of the false exculpatory statements he

sought to have suppressed. After arriving at the FBI

office Alphonse was again given Miranda warnings,

following which he executed a written waiver of his

rights. Alphonse then admitted knowing Mui, but made

another false exculpatory statement by denying that he

had telephoned Mui the previous afternoon.

On the basis of the evidence presented at the hear-

ing, the district court found that Alphonse had been

given adequate Miranda warnings, that he had not been

subjected to physical abuse or intimidation by the

agents, and that, in all the circumstances, Alphonse

had knowingly, intelligently and voluntarily waived his

Fifth and Sixth Amendment rights. These findings are

not clearly erroneous, and the motion to suppress Al-

8 false exculpatory statements was properly

enied.

Alphonse also appears to argue on appeal that his

post · arrest statements should have been suppressed be-

cause the agents’ entry into the Marrale apartment was

unlawful and therefore the arrest of Alphonse was also

unlawful. We find no indication that Alphonse raised

this argument in the district court. His motion for sup-

pression raised only the arguments going to the volun-

tariness of his statements, described above, and did not

even hint at a contention that the arrest was unlawful.

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Appendix A - Opinion of United States Court of Appeals

Indeed, at the suppression hearing, when Alphonse’s

counsel started to raise the possibility that Alphonse’s

detention had been unlawful, he did so not on the

premise that the agents had no authority to enter the

Marrale apartment, but only on the untenable premise

that an arrest warrant was required.’ In any event, the

government attorney objected to the injection of this

issue on the ground that the legality of the arrest had

not been challenged. The court sustained the objection,

(Suppression hearing at 65), and Alphonse did not pursue

the matter further. The government thus had no incen-

tive to offer such proof as might have been available to

show exigent circumstances or consent, justifying a

warrantless entry, see Payton v. New York, 445 US.

573, 586-90 (1980), nor to request that the court make

findings as to the lawfulness of entry. We conclude that

Alphonse is barred from challenging the lawfulness of

his arrest on this appeal. See United States v. Vasquez,

638 F.2d 507, 530 n.15 (2d Cir. 1980), cert. denied, 454

U.S. 975 (1981).

B. The Prosecutor’s Conduct

Alphonse’s principal claim on appeal is that the

prosecutor’s summation deprived him of a fair trial. He

challenges a number of her statements as derogatory of

his defense or of his counsel, or as injecting the prose-

cutor’s beliefs and credibility into the case, or as vouch-

ing for the truthfulness of Mui, or as misstating the

facts. Alphonse contends that since the district court

had stated that the government’s case against him was

“skimpy,” (Hearing on motion to dismiss at 16), the

challenged statements of the prosecutor were sufficient-

Alphonse does not contend that probable cause did not exist for

his arrest, nor could he in light of the information provided to the

FBI by Mui. Since probable cause existed, no arrest warrant was

required. Carroll v. United States, 267 U.S. 132, 156-57 (1925); see also

Gerstein u. Pugh, 420 U.S. 108, 113 (1975).

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Appendix A - Opinion of United States Court of Appeals

ly unfair to require that he be given a new trial. We dis-

agree. We have reviewed all of Alphonse’s assertions

and find only two to be worthy of extended discussion.

First, we are unpersuaded that the prosecutor impro-

perly made disparaging remarks about Alphonse’s

counsel or his defense that Alphonse was not a knowing

participant in the conspiracy, but was instead merely a

stupid and obedient son following the directions of his

father, Frank.“ Alphonse's attorney bolstered this claim

by repeatedly referring to Alphonse as a “boy” during

the trial and by giving directions to Alphonse as to

when to stand up and when to sit down. In response, the

prosecutor argved in summation that Mr. Goldberg had

treated Alphonse in a “condescending way” and that

Mr. Goldberg “wants you to think that his client was not

capable of doing anything except the mindless following

of his father’s orders.” She also hypothesized that the

evidence showed Alphonse was a capable, intelligent

participant in the conspiracy, “[njot as Mr. Goldberg

portrayed Alphonse Marrale, not a dupe with no ability

to say no, no ability to think, but as his father’s trusted

partner.” Since a prosecutor is ordinarily entitled to

To the extent that the prosecutor's statement that “I submit

that [Alphonse’s defense of obedience] is a defense woven out of the

thread of desperation and thread that unwravels [sic] before you

because Alphonse Marrale is wrong,” (Tr. 955-56), commented

improperly on the credibility of the defense case, we conclude that

it did not deprive Alphonse of a fair trial in light of the facts that

(1) it was but one sentence in a summation that lasted an hour and a

half, (2) the evidence at trial was sufficient to convict Alphonse of

conspiracy, and (3) the trial court adequately instructed the jury

that an attorney’s remarks during summation are not to be taken as

evidence, warned that lawyers are sometimes overzealous in their

cause, and gave reminders that the jury ia the judge of the facts of the

case. United States u, Modica, supra, See United States b. White,

486 F.2d 204, 206 (ad Cir, 1978), cert. denied, 415 U.S. 980 (1974),

upholding conviction where prosecutor's summation had charged

twice that defendant was “lying” and repeatedly asserted that the

defense was “fabricated” -.., “the defendant has fabricated these

NN in order to bolater a specious, meritless argument.” Id. at

n. 7.

19

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Appendix A - Opinion of United States Court of Appeals

to the evidence, issues, and hypotheses

pounded by the defense, see, e. g., United States v. Miller,

478 F.2d 1315, 1318 (2d Cir.), cert, denied, 414 U.S, 851

(1973); United States b. Sawyer, 443 F.2d 712, 713-14

(D.C, Cir 1971), we find no basis for overruling the de-

termination of the district court—which surely was in a

better position than we to evaluate subtle behavioral

defense tactics - that in the circumstances of the present

case that portion of the summation was proper.“

Nor do we believe the prosecutor's admonition to the

jury not to “be fooled” by the tactics of Alphonse’s

attorney falls into the category of impermissible con-

duct. Statements designed to appeal to the jury's emo-

tions or to “inflame the passions or prejudices of the

jury,” American Bar Association Standard 3-5.8(c), are

improper. See, g., United States v. Modica, 663 F. 2d

1173, 1178-81 (2d Cir. 1981), cert. denied, 102 8. Ct. 2269

(1982), and cases cited therein. Thus, we have con-

demned remarks such as “you have to be born yester-

1% In response to Alphonse's motion for a mistrial based on this

part of the government's summation, the following colloquy

occurred:

Ma, Giacalone [Assistant United States Attorney!

Your Honor, what I did, I believe was entirely appropriate

in light of the defense taken in thie case, The defense was a

very pointed one.

In another case thie summation would not have been

appropriate, In thie case the defense was Alphonse Marrale

is too dumb to have committed thie crime.

The Court: Actually, that was the defense.

Mr. Goldberg: I did not inject my view—

The Court: The way you went at it.

Mr. Goldberg: Absolutely, and I stand by it. How does it

justify a response—

The Court: In light of the trial of thie case, I don't find

anything in Miss Giacalone’s summation which was preju-

dicial and I am going to deny your application.

(Tr. 997-08).

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Appendix A - Opinion of United States Court of Appeals

day” to believe appellant's defense, and the defense is

“an insult to your intelligence,” United States v. Gon-

zalez, 488 F.2d 833, 836 (2d Cir. 1973); defendant's

“testimony is so riddled with lies it insults the in-

telligence of 14 intelligent people sitting on the jury,”

United States v. Drummond, 481 F.2d 62, 64 (2d Cir.

1973); and “Don’t let [the defendant] walk out of this

room laughing at you,” United States v. Modica, supra,

663 F. 2d at 1180.

The remarks made by the prosecutor at the

present trial pale beside the examples just given.! The

prosecutor here three times warned the jury not to be

“fooled” by the defense tactics, While the word “fool”

used as a noun is usually demeaning, so that we would

surely have disapproved if the prosecutor had warned

the jury not to “be made fools of” or not to be “made to

appear fools,” her use of the verb fool“ seems rela-

tively innocuous, since one who is fooled ie not thereby

necessarily a fool, and one who fools another does not

necessarily exhibit a moral defect. While repetition of

the phrase Don't be fooled” obviously could be over-

done, we conclude that, in light of the permissible desire

to dispute defense histrionics, the prosecutor's three

such admonitions in the present case did not deprive

Alphonse of a fair trial.

CONCLUSION

The judgments are affirmed.

Even the language in the examples quoted did not necessarily

result in reversal of the defendant's convictions. In United States

U. Modica, supra, we found that in all the circumstances the state-

mente had not denied the defendant a fair trial and thus did not

warrant reversal, The convictions in United States u, Gonzalez,

supra, and United States v. Drummond, supra, were reversed,

although in Gonzalez the reversal was based on “the combination

of” prosecutor's statements and an error in the jury charge. See also

United States u. White, supra note 9.

;