# Appendix — Marrale v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1041

## Text

la
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

l4a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0425%3A2. Public record. Not legal advice.