Petition — Gambale v. United States

Office - Supreme Court, U.S.

83-920 FILED

QEC 2 (983

No.

Li fy Bitte f= 4 STEVAS.

CLERK

IN THE

Supreme Court of the United States

Octoser Term, 1983

Vixcent GAMBALE,

Petitioner,

Unirep States or AMEBICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Epwarp M. CHrkorsky

Russo Smtverman & ViraLiano

140 Cedar Street

New York, New York 10006

(212) 406-4000

Attorneys for Petitioner

Questions Presented

1. Whether the trial court’s preclusion of defense evi-

dence and effective preclusion of presentation of the de-

fense theory of the case violated defendant’s Sixth Amend-

ment rights.

2. Whether defendant was denied a fair trial by the

prosecutor’s improper rebuttal summation which spec

ulated on matters not properly in evidence at a time when

defendant had no further opportunity to respond.

3. Whether the Government’s use of sonically enhanced

and filtered tape copies violated the best evidence rule.

4. Whether the trial court improperly imposed cumnla-

tive penalties under 18 U.S.C. Secs. 659 and 2113(b) for a

single criminal transaction.

iii

TABLE OF CONTENTS

Questions Presented ..

Table of Authorities ..

Opinion Below ......................-.- Aiden no Ae

Jurisdiction

Constitutional Provisions, Statutes and Rules Involved

Statement of the Case ...

The Government’s Proof at Trial ....

The Defense Case .... socdilglaiesiieedaad tt Ack iae ga tae

Pomr I—

The Trial Court’s Refusal to Permit Petitioner to

Present an Alternate Theory of Defense Consti-

tuted a Denial of His Sixth Amendment Rights ....

The Right to Present a Defense

Porr II—

The Prosecution’s Improper Rebuttal Summation

and the Trial Court’s Failure to Give a Curative

Instruction Deprived Petitioner of a Fair Trial ....

Pormr TI—

The Government’s Use of Sonically Enhanced and

Filtered Tape Copies Violated the Best Evidence

Rule

Port IV—

Congress Did Not Intend to Subject Petitioner to

the Imposition of Cumulative Penalties Under 18

U.S.C. Sec. 659 & 2113(b) for a Single Criminal

Order Denying Rehearing

ow wo fe

14

&

- bal vy

iv

TasLe oF AUTHORITIES

Cases: PAGE

Albernaz v. United States, 450 U.S. 333 (1981) ............ 22

Bell v. United States, 349 U.S. 81 (1955) 21

Blockburger v. United States, 284 U.S. 299 (1932)

21, 22, 23

Chambers v. Mississippi, 410 U.S. 284 (1973) ........ 11, 13, 14

Cool v. United States, 409 U.S. 100 (1972 12

Evans v. Janing, 489 F.2d 470 (8th Cir. 1973) .............. 13

Flores v. Estelle, 492 F.2d 711 (5th Cir. 1974) .............. 13

Fountain v. United States, 384 F.2d 624 (5th Cir.

1967) 19

Giglio v. United States, 405 U.S. 150 (1972) .............. 13»

Jeffers v. United States, 432 U.S, 187 (1977) 0... 22

Johnson v: Brewer, 521 F.2d 566 (8th Cir. 1975) ........ 13

Ladner v. United States, 358 U.S. 169 (1958) ................ 21

Moore v. United States, 344 F.2d 558 (D.C. Cir, 1965)

(per curiam) .. 16

Prince v. United States, 352 U.S, 322 (1957) ..............28, 24

Simpson v. United States, 435 U.S, 6 (1978) ............. 21, 22

United States v. Agueci, 310 F.2d 817 (2d Cir. 1962),

cert, denied, 372 U.S. 959 (1963) 17

United States v. Alewander, 326 F.2d 736 (4th Cir.

1964) 19

United States v. Beck, 511 F.2d 997 (6th Cir. 1975)

22-23, 25

PAGE

United States v. Canty, 469 F.2d 114 (D.C. Cir. 1972)

22, 24, 25

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

Ly. pane aS ree 21

United States v. Franks, 511 F.2d 25 (6th Cir. 1975) ... 25

United States v. Gonzalez, 488 F.2d 833 (2d Cir. 1973) 17

United States v. Goodlow, 500 F.2d 954 (8th Cir. 1974) 14

United States v. Guglielmini, 384 F.2d 602 (2d Cir.

ERE GE AS SAT » FF

United States v. Leek, 665 F.2d 383 (D.C. Cir. 1981)... 24

United States v. Marrale, 695 F.2d 658 (2d Cir. 1982),

cert. denied, 103 S. Ct. 1435 (1983) ..........--.cecececeeeeneee 4n

United States v. Niwon, 418 U.S, 683 (1974) -.........-..... 11

United States v. Robinson, 544 F.2d 110 (2d Cir. 1976) 12

United States v. Robinson, 707 F.2d 872 (6th Cir. 1983) 20

United States v. Romano, 482 F.2d 1183 (5th Cir. 1973) 138

United States v. Rosa, 493 F.2d 1191 (2d Cir. 1974) ... 18

United States v. Stephenson, 121 F. Supp. 274 (D.D.C.

1954), appeal dismissed, 223 F.2d 336 (D.C. Cir.

1955) 20

United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977) 13

United States v. Wyler, 487 F.2d 170 (2d Cir. 1973) ... 18

Wardius v. Oregon, 412 U.S. 470 (1973) 13

Washington v. Texas, 388 U.S. 14 (1966) .................. 12,14

Webb v. Texas, 409 U.S. 95 (1972) ..... 12

Welcome v. Vincent, 549 F.2d 853 (2d Cir. 1977) ........ 11,13

Other Authorties:

District of Columbia Code .. aA

Federal Rules of Criminal Procedure—

Rule 29.1 3, 9, 15, 16, 17

Federal Rules of Evidence—

Rule 1003 3, 19

Rule 1003(1) {

Rule 1003(2)

Pen A Pde) th. Cee! ane 2) a re eae, YF

ese See ee ee en ee ee ee eee

o_o

as Tot

|

Pes

f

’ a“.

t a

ac

* >

*

House Judiciary Committee Report (H.R. Report No.

94-247) 16 ;

Rule 20.1 1

Sixth Amendment to the Constitution i, 2, 10 ,

Westen, Confrontation and Compulsory Process: A 4

Unified Theory of Evidence for Criminal Cases, 91 td

Harvard L. Rev. 567 (1978) 11,14 ‘

18 U.S.C. § 371 ae :

18 U.S.C. § 659 i,2, 3, 21,95

18 U.S.C. §924(c) i a

18 U.S.C. § 2113 2, 22, 28, 24 :

18 U.S.0. §2113(a) 21 ;

18 U.S.C. § 2113(b) 4, 3, 21 4

18 U.S.C. §2113(d) 21, 22, 24 E

28 U.S.C. § 1254(1) 1

No.

In THE

Supreme Court of the United States

Ocroser Term, 1983

Vincent GaMBALE,

Petitioner,

v.

Unrrep Srates or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Vincent Gambale respectfully prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit in

this case.

Opinion Below

The opinion of the Court of Appeals (Kearse, Cardamone

and Winter, JJ.) (App., infra, pp. la-4a) is not reported.

Jurisdiction

The judgment of the Court of Appeals was entered on

September 6, 1983. A timely petition for rehearing was

denied on October 5, 1983. The jurisdiction of this Court

is invoked under 28 1..8.C. § 1254(1) and Rule 20.1 of the

Rules of this Court.

-

*

ae

Constitutional Provisions, Statutes

and Rules Involved

Sixth Amendment to the Constitution.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining Witnesses in his favor,

and to have the Assistance of Counsel for his defence.

18 U.S.C. § 659. Interstate or Foreign Shipments by Car-

rier.

Whoever embezzles, steals or unlawfully takes by

any fraudulent device * * * from any railroad...

vehicle . . . vessel, or aircraft operated by any com-

_ mon carrier moving in interstate or foreign commerce

... any money, baggage, goods, or chattels, .. .

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

imprisoned not more than ten years, or both * * *

18 U.S.C. § 2113. Bank Robbery and Incidental Crimes.

(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 joan as-

sociation, shall be fined not more than $5,000 or im-

prisoned not more than ten years, or both;

Be

Sat xg, et ET

bed Sicha ee &

3

Federal Rules of Criminal Procedure.

Rule 29.1. Closing Argument

After the closing of evidence the prosecution shall

open the argument. The defense shall be permitted to

reply. The prosecution shall then be permitted to reply

in rebuttal.

Federal Rules of Evidence.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an

original unless (1) a genuine question is raised as to

the authenticity of the original or (2) in the circum-

starices it would be unfair to admit the duplicate in

lieu of the original.

Statement of the Case

Petitioner was convicted in the United States District

Court for the Eastern District of New York (Bramwell,

J.), after trial by jury, of conspiracy to commit bank theft

and theft from interstate shipment (18 U.S.C. § 371); theft

from an interstate shipment (18 U.S.C. § 659); and bank

theft (18 U.S.C. § 2113(b)). He was sentenced to consecu-

tive terms aggregating twenty-five years imprisonment and

a cumulative fine of $20,000. The conviction was affirmed

by the United States Court of Apne (App., infra, la-

4a).

The Government's Proof at Trial

The indictment in this case was based upon the theft of

a two million dollar shipment of currency en route from

the Republic National Bank in New York to Seoul, Korea.

According to Steven Mui, the Government’s principal wit-

ness, the money was stolen from an armored car trans-

porting it to John F. Kennedy Airport by ayes

bogus bags filled with newspaper for the real money. Mui

y= Oe

&

3

t.

=

4

7x

4

and co-defendant Frank Marrale were employees of the

Armored Express Company which was entrusted with de-

livery of the shipment to Korean Airlines on November

10, 1981.*

In April 1981, Mui was employed as a truck courier for

Armored Express Company (Tr. 194). His duties included

taking large amounts of currency from New York banks

to Kennedy Airport for shipment to foreign banks (Tr.

202). He and Frank Marrale routinely made overtime

runs to Japan Airlines and Korean Airlines (Tr. 206-12).

They would personally deliver the bags of money and paper-

work for the shipment to the pilot of the aircraft and ob-

tain a receipt (Tr. 213).

Mui observed that the pilots regularly failed to compare

the serial numbers on the bags of currency against the

accompanying paperwork; rather, the pilot merely would

sign for the shipment (Tr. 212). He and Marrale began

to discuss stealing a shipment by substituting phony bags

for the real bags of money (Tr. 213). Marrale told him

that he knew three individuals who would prepare the

phony bags and seals**; Mui was supposed to switch the

bags and put the destination tage prepared by the bank

on the bogus bags (Tr. 216).

On November 10, 1981, Mui was informed that there

was an overtime run consisting of two million dollars to

Korean Airlines and seven million dollars to Japan Air-

lines, to be delivered to Kennedy Airport by 1:00 A.M. on

November 11, 1981 (Tr. 302). Marrale told him they were

going to take the Korean shipment that night, stating he

would telephone his third partner and instruct him to bring

"© Prank Marrale and his son Alphonse were charged bay

Ps ge ~ Agee eg indictment we eee See

trial. Their convictions were separately affirmed by the Me

United States v. Marrale, 695 F.2d 658 (2d Cir. 1982),

. denied, 108 8. Ct. 1435 (1983).

5

the phony money in a car and to park the vehicle on West

Street in front of Armored Express (Tr. 303).°

Mui and Marrale completed their early evening run at

approximately 11:50 P.M. They returned to Armored Ex-

press, stopped beside a Lincoln Continental, Marrale re-

moved five bags from its trunk and placed them behind

the driver’s seat of the armored truck (Tr. 318). They

then drove to Armored Express where they picked up

the two shipments and the necessary paperwork (Tr. 319).

The five bags containing the Korean Airlines shipment

were placed in front of the driver’s seat (Tr. 320), the

destination tags were removed from the authentic bags of

money, attached to the bogus bags, whereupon the truck

proceeded to Kennedy Airport, where the switch was made

(Tr. 329-31).

Upon their return from the airport, Marrale gave Mui

keys to his Cougar automobile, telling him to unload the

bags of money hidden behind the driver’s seat of the ar-

mored truck and to put them in the trunk of the Cougar

(Tr. 334). After doing this, Mui noticed the Lincoln

Continental from which Marrale had earlier taken the

bogus bags parked in approximately the same location.

He also noticed a white male, approximately six feet tall

and one hundred ninety pounds, got into the Lincoln (Tr.

339). Mui, however, was unable to identify this individual.

Several days after the theft, officials of Armored Ex-

press asked Mui to take a lie detector test (Tr. 353). Mui

spoke with an attorney about his participation in the theft

introduced a number of consensual tape recordings be-

tween Mui and Marrale from December 4th to Decem-

ber 9th 1981, with respect to disposal of the money and

Mui’s receiving his share of the proceeds.*

Marrale delivered approximately $300,000 to Mui on

December 6, 1981 at the Kings Plaza Shopping Mall in

Brooklyn (Tr. 380). Mui handed Marrale the keys to his

ear, Marrale went outside to the parking ‘ot and came

back ten minutes later, telling him that he had placed a

shopping bag with $300,00 in the trunk of his car (Tr. 382).

Mui then walked outside to the parking lot and saw the

same Lincoln Continental he had seen on the night of the

theft (Tr. 383). He identified Petitioner Vincent Gambale

as having been behind the wheel in the parking lot (Tr.

394). Mui admitted, however, that he never met Gambale,

never spoke to him and merely saw him in the parking lot

on the afternoon of December 6 (Tr. 470).

FBI agents testified to having participated in the sur-

veillance at the Kings Plaza Shopping Center (Tr. 828).

Marrale and Mui were observed in conversation inside the

mall (Tr. 833). After 5-10 minutes, Marrale left the mall

and entered the Lincoln (Tr. 834-35). Marrale thereafter

exited the vehicle, walked over to Mui’s car, opened the

trunk and placed a brown shopping bag inside (Tr. 837-38).

Marrale then re-entered the shopping center (Tr. 840). He

spoke to Mui again and Mui left (Tr. 841). Marrale exited

center, walked to Gambale’s car and the two

F

Pow Wee ee

= Oe sual

‘.

The Defense Case

Marshall Gaither, Special Agent of the FBI, testified that

Steve Mui had told him that the unidentified man he saw

on the night of November 10 was “losing his hair” and that

he described the man in his 302 report as a “balding white

male” (Tr. 886, 888, 890).* The agent was on surveillance

in the Kings Plaza parking lot (Tr. 895). He observed

Marrale place the shopping bag in Mui’s car trunk but

didn’t see Gambale give the bag to Marrale (Tr. 895-96).

Joan Marrale—Frank Marrale’s wife—testified that on

November 9, 1981—the day before the theft—her husband

had borrowed Gambale’s red Lincoln and used it until

November 11, 1981—the day after the theft (Tr. 947-48).

Her husband borrowed the car because his car had broken

down the previous weekend (Tr. 947). She and her hus-

band had borrowed Gambale’s car many times in the past

and had even taken it on a trip to Wyoming in 1979 (Tr.

945-46).

Anna Mae Gambale—defendant’s wife—testified that

Marrale borrowed their car on November 9, 1981 and that

she, in fact, turned over the car keys to him (Tr. 975-77,

980). Marrale returned the car on November 11, 1981 (Tr.

977). He had borrowed the car many times in the past

(Tr. 975).

Robert Gagliardotto—a trucker and a friend of Marrale

—testified that he had Marrale’s Cougar automobile towed

into his warehouse for repairs on November 9, 1981 (Tr.

1296-87 ; 1293). On the following afternoon—November 10

(the day of the theft)—he returned Marrale’s repaired car

to a parking space on West Street, near the vicinity of the

Armored Express office, at about 4:30 to 5:30 p.m. (Tr.

1294, 1298). The following day—November 11—he

, the defen-

had to have the car towed in once again for further repairs

(Tr. 1294-98).

Vincent Gambale testified in his own defense (Tr. 1037.

1279). He testified to having been friends with Frank

Marrale for fifteen years (Tr. 1037-40). He had loaned

his car to Marrale on many occasions over the years, in-

cluding Marrale’s trip to Wyoming in 1979 (Tr. 1042).

Another of these occasions was Monday, November 9—

the day before the theft—when Marrale came over and

borrowed the car because his own vehicle had broken down

over the weekend (Tr. 1043-44).

On Sunday, December 6, 1981, Marrale came over to his

house in the early afternoon to visit (Tr. 1046). After a

few minutes, Marrale asked him if he would mind giving

him a lift so that he could make a phone call (Tr. 1048).

Despite Gambale’s offer to have him use the phone at

home, Marrale declined, stating that he wanted to use a

pay phone (Tr. 1048). He drove Marrale to a phone booth

two blocks away (Tr. 1048). When Marrale made his

phone call, he (Gambale) stayed in the car with the win-

dow up and the heat on (Tr. 1050). Gambale could not

overhear any of the phone conversation at the pay phone

(Tr. 1051).

At about 2:30 that afternoon, he drove to New York

with one of his employees, Robert Ruckert, to pick up

some folding chairs at the Bowery Chair Factory on Canal

Street (Tr. 1052-53). They delivered the chairs to the

Dinettes R Us store at Coney Island Avenue and Avenue P

(Tr. 1054). He finally returned home at about 3:30 or

quarter to four, after having had to go back to the store

to get paid for the delivery (Tr. 1055-56).°

When he returned home, he found Marrale wa'ting for

him (Tr. 1058). He tried to beg off taking Marrale to the

shopping center—he had a chronic back condition which

* Gambale’s testimony 2s to the trip was corroborated by Ruck-

ert (Tr. 925-29, 934).

M a Ye q ‘ by : at tt Bho Ss aa

" i ee Sd PSA PS Oe ee eee eee eR ae

oe a Pe

9

he twisted in carrying the chairs earlier—but Marrale in-

sisted (Tr. 1058-59). Reluctantly, he agreed (Tr. 1058,

1062). Gambale testified that Marrale appeared “a little

nervous” and not “his usual self” but that at the time he

never gave it a second thought (Tr. 1061-62).

Once arrived in the parking lot, Marrale got out and

went into the mall without the package (Tr. 1072-73). Ten

to fifteen minutes later, Marrale returned, got in the car

and they parked the car at a second spot closer to the mall

(Tr. 1073-74). Marrale then exited the car a second time

—this time with the shopping bag from behind his seat—

and walked towards another car parked in the lot (Tr.

1075). Marrale returned in about five or ten minutes (Tr.

1076). He no longer had the shopping bag and was very

nervous (Tr. 1077).

As they left the parking lot, Marrale became very

“fidgety” and was continuously looking around (Tr. 1077-

78). When he stopped the car part of the way home to

check on possible tire problems, Marrale said “Oh, shit,

they are following us” (Tr. 1079). Wher he asked Marrale

what he meant, Marrale replied that he was in debt to

shylocks and suggested they were after him (Tr. 1079-80).

After that he did engage in evasive driving on the way

home, at Marrale’s request (Tr. 1080). However, he had

no idea that he was being followed by the F.B.I. (Tr.

1080).*

9 * The trial court refused to allow Gambale to testify to the

fact that at the time he was arrested his hair was pulled by the

agents in an attempt to determine whether he was ~~

mar” seen on the night of November 10 (Tr. 1088-90).

Sail eetiodlo wabeted to slaw Dodane tttrccaes Wak tee

James Williams and Robert Ruckert testify to this incident (Tr.

902-3, 904-8, 910-13, 926). The crucial significance of this defense

well as the excluded testimony of defense witness

George w (Tr. 1307, 1310-13, 1320-28)—to the defense theory

of the case is discussed in Point I, infra.

10

POINT I

The Trial Court’s Refusal to Permit Petitioner to Pre-

sent an Alternate Theory of Defense Constituted a

Denial of His Sixth Amendment Rights.

The Government’s case against Petitioner was built on

the theory that he was the unnamed “partner” responsible

for laundering the proceedings of the armored truck theft.

In accordance with this theory, the Government introduced

evidence that he was present in the shopping center park-

ing lot on the afternoon of the payoff to Steven Mui

(December 6th) and that his car was parked in the vicinity

of the armored truck offices on the night of the theft

(November 10th). Moreover, it introduced co-conspirator

statements made by Frank Marrale to the effect that this

“partner” was going to be in the vicinity of the armored

truck office on the night of the theft and would be in the

parking lot surveilling Mui on the day of the payoff.

The evidence that surfaced at trial, however, was dis-

tinctly at variance with the Government’s theory. While

Mui identified Gambale as having been in the shopping

center parking lot on the afternoon of the exchange—a

fact which Gambale did not contest—he identified a wholly

different man, a man “losing his hair” whom the F.B.I.

described in its 302 report as a “balding white male,” as

having been present on the night of the robbery.

More importantly, at the time he was arrested—on De-

cember 10—Gambale’s physical appearance was so different

from that of the alleged “partner” present on the night of

November 10 that the F.B.I. agents pulled his hair and,

seeing that it wouldn’t come off, said “oh shit, we got the

wrong guy.” (Tr. 902-3).

Petitioner sought to introduce the testimony of three

witnesses—F'red Calabrese, James Williams and

Ruckert-—all of whom were present at the time

arrested and who would have testified both to his physical

11

appearance as well as to the FBI agents having stated

that they thought they had the wrong man (Tr. 902-3, 904

8, 910-13, 926). The trial court, however, refused to allow

the defense to explore this line of inquiry when the defen-

dant took the witness stand (Tr. 1088-90) and forbid the

defense from presenting any such exculpatory evidence in

the defense case in chief (Tr. 902-13).

Gambale clearly had a right to establish that an indi-

vidual other than himself was involved in the specific trans-

actions charged against him and to present such conflicting

evidence to the jury for its ultimate resolution. The trial

court’s improper restrictions upon Gambale’s presentation

of such exculpatory evidence tending to establish that

someone other than himself committed the acts—and that

the FBI thought that it had arrested the wrong man—was

clear error. Chambers v. Mississippi, 410 U.S. 284 (1973);

Welcome v. Vincent, 549 F.2d 853 (2d Cir. 1977).

The Right ts Present a Defense

The refusal of the trial court to allow the jury to hear

testimony regarding whether the FBI believed it had ar-

rested the wrong man because of the difference in his

physical description from the third “partner” deprived

Gambale of his right to compulsory process and due process

of law. The compulsory process clause was specifically de-

signed to give a criminal defendant commensurate power

with the government to place evidence before the jury.

The Supreme Court has expounded this principle in United

States v. Nivon, 418 U.S. 683 (1974), and it is now clear

that the compulsory process and due process clauses afford

an accused the right to discover witnesses in his favor,

to produce them in court, to introduce their statements

into evidence and to have them believed. Westen, Con-

frontation and Compulsory Process: A Unified Theory of

Evidence for Criminal Cases, 91 Harvard L. Rev. 567

(1978). See also, Chambers v. Mississippi, supra, 410 US.

at 302 (“Few rights are more fundamental than that of

12

an accused to present witnesses in his own defense”);

Cool v. United States, 409 U.S. 100 (1972); Webb v. Texas,

409 U.S. 95 (1972).

Washington v. Texas, 388 U.S. 14 (1966) recognized the

similarities between compulsory process and confrontation

by drawing an explicit parallel between a defendant’s right

to elicit testimony from his own witnesses (compulsory

process) and his correlative right to elicit testimony from

the witnesses against him (confrontation):

“The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms

the right to present the defendant’s version of the

facts as well as the prosccntion’s to the jury so it may

decide where the truth lies. Just as an accused has

the right to confront the prosecution’s witnesses for

the purpose of challenging their testimony, he has the

right to present his own witnesses to establish a de-

fense.” 388 U.S. at 18.

See also, United States v. Robimson, 544 F.2d 110 (2d Cir.

1976):

“It was entirely proper for Robinson to disprove the

government’s contentions by proving that the third

man was someone else. 1 J. Wigmore, Evidence Sec-

tion 34 (3d ed. 1940) .. . 2 Wigmore Section 413. If

it was, then obviously Robinson was innocent. Evi-

dence to the effect that the third man in the bank

resembled an individual suspected of two armed rob-

beries that occurred in the Bridgeport area within six

days was clearly probative of the issue Robinson sought

to prove, namely, that the third man was someone else.”

544 F.2d at 112-113. 3

Bs

| The parallel to this case is striking. Gambale sought to

mr elicit testimony that clearly would have established a color-

; able question as to whether he was present on the night of

the bank theft and, perforce, whether he was the third

13

“partner” Marrale spoke of. Indeed, it was a crucial ques-

tion for Gambale as to whom the jury decided was the

partner. Deprived of the knowledge that even the FBI

thought they had the “wrong guy” because of the disparity

in physical appearance—the jury could draw no other in-

ference but that the “partner” was Gambale.

The two-pronged standard by which a defendant’s prof-

fered exculpatory evidence must be judged are materiality

and relevance. While it is true that a witness may be ex-

cluded whose testimony is merely cumulative (United

States v. Rosa, 493 F.2d 1191 (2d Cir. 1974)), vague as

to content (United States v. Wyler, 487 F.2d 170 (2d Cir.

1973) ), or irrelevant to an adequate defense (United States

v. Romano, 482 F.2d 1183 (5th Cir. 1973) ; United States v.

Taylor, 562 F.2d 1345 (2d Cir. 1977)), to the extent that

a witness’ testimony creates a significant question of fact

which would impeach the Government’s case, he is deemed

material and favorable to the accused. Wardius v. Oregon,

412 U.S. 470 (1973) ; Chambers v. Mississippi, supra. More-

over, the “burden of demonstrating that the evidence was

of a favorable nature is... a very slight one.” Evans v.

Janing, 489 F.2d 470, 476 (8th Cir. 1973).

The standard for review of the exclusion of such excul-

patory evidence from the jury entails evaluating the pos-

sibility that the evidence, once admitted, “could ... in any

reasonable likelihood have affected the judgment of the

jury,” Giglio v. United States, 405 U.S. 150, 154 (1972);

Johnson v. Brewer, 521 F.2d 556, 563 (8th Cir. 1975);

Flores v. Estelle, 492 F.2d 711, 713 (5th Cir. 1974).

It makes no difference how the exculpatory evidence is

excluded—by impeachment of prosecution witnesses, by

barring a defendant from impeaching his own witnesses

or by denying him the right to call witnesses. The sole

question is whether the suppressed evidence is material.

See, Welcome v. Vincent, supra, 549 F.2d at 857 (Oakes,

J.) (“a significant restriction on a defendant’s examina-

14

tion of a witness .. . is alone enough to deny a defendant

a fair trial” if the ruling operates to exclude evidence

“which, if true, would have exonerated [him]”); United

States v. Goodlow, 500 F.2d 954, 958 (8th Cir. 1974) (ex-

clusion of exculpatory hearsay alone was enough to deny

fair trial “because we cannot say beyond a reasonable

doubt that the excluded evidence would not have changed

the jury’s verdict”). See also, Westen, Confrontation and

Compulsory Process, supra, 91 Harvard L. Rev. at 579-581,

590-593, 608 n. 12.

The rejection of defense efforts to affirmatively demon-

strate the unreliability of the Government’s case and the

existence of clearly exculpatory evidence withheld from

the jury evidence necessary to a discriminating appraisal

of reasonable doubt as to Gambale’s guilt. The imping-

ment upon Gambale’s right to present his version of the

facts denied him the right to a fair opportunity to defend

against the Government’s accusations. Chambers vy. Missis-

sippi, supra; Washington v. Texas, supra. Such denial

amounts to a deprivation of due process of law.

POINT II

The Prosecution’s Improper Rebuttal Summation and

the Trial Court’s Failure to Give a Curative Instruction

Deprived Petitioner of a Fair Trial.

The conduct of the Government during the course of its

rebuttal summation in this case went well beyond the

bounds of tolerable excess. In what amounted to an at-

tempt to sandbag the defense, the prosecution withheld

until its rebuttal summation a powerful, though mislead-

ing, jury argument on a crucial issue in this case—the

question of Gambale’s trip to New York to pick up chairs

before going to the Kings Plaza Shopping Center with

Marrale (Tr. 1435-38). The argument, conceded by the

trial court to be “bad faith” and based on “testimony not

being in the record in this case” (Tr. 1444-46), was im-

i.

15

proper rebutial summation in violation of the letter and

purpose of Rule 29.1 of the Federal Rules of Criminal

Procedure. The trial court’s refusal to grant a mistrial

and failure to give the jury a curative instruction deprived

Gambale of a fair trial.

The defense presented powerful evidence indicating that,

in the middle of the afternoon on which he was supposed

to exchange a $300,000 payoff, Gambale had taken a trip

to New York with one of his store employees to pick up

and deliver some folding chairs to a store in Brooklyn in

order to make $40 for himself during the Christmas sea-

son—hardly the actions of a man who stood to be profiting

handsomely from a $2,000,000 bank theft. This wholly un-

related trip substantially supported Gambale’s testimony

that he was merely going about his personal business, and

that, after returning from New York, he merely gave

Marrale a lift to the shopping center as a favor to a friend

—wholly unaware of what Marrale was up to.

Recognizing its lack of evidence explaining the signifi-

cance of Gambale’s unrelated trip to New York ostensibly

in the middle of the transaction, the prosecution in its

rebuttal summation unearthed the following explanation

for the first time in the trial:

What was the trip with the chairs all about? Why

this pickup of chairs for $40 when he is cashing in on

a $2,000,000 ripoff? Ladies and gentlemen, you don’t

know, I submit to you, whether the only reason Mr.

Gambale went out on that day to the Bowery Chair

Factory was to pick up chairs.

What is happening during the course of that trip is

Mr. Gambale is going to pick up the laundered money

to deliver the money later that afternoon. That trip

had nothing to do with a $40 payment, I submit to you.

Tr. 1435-36.

16

This disingenuous argument, however, was totally wide

of the mark. As the prosecutor well knew, surveillance

reports of Gambale’s trip that day corroborated that he

made the trip exactly as he testified and that there was

no indication in the report—or anywhere in the evidence

at trial—that Gambale picked up anything even remotely

akin to the laundered money alluded to in the prosecutor’s

rebuttal (Tr. 1445).°

Rule 29.1 of the Federal Rules of Criminal Procedure,

proposed by the Supreme Court and adopted by Congress

without change in 1975, was specifically intended to elimi-

nate from federal criminal trials the unfairness to a de-

fendant created by the lack of an opportunity to address

the jury on arguments raised by the prosecutor in sum-

mation.

The underlying purpose of the Rule was specified in the

1975 House Judiciary Committee Report (H.R. Report No.

94-247):

“The Committee believes that ... fair and effective

administration of justice is best served if the defen-

dant knows the arguments actually made by the prose-

cution in behalf of conviction before the defendant is

faced with the decision whether to reply and what to

reply.”

New arguments by the prosecution “in behalf of convic-

tion” are obviously improper in rebuttal. As the District

of Columbia Circuit succinctly wrote in commenting on

the proper scope of rebuttal:

“.. Government counsel should not be allowed to de-

velop new arguments on rebuttal...” Moore v. United

States, 344 F.2d 558, 560 (D.C. Cir. 1965) (per curiam).

* Indeed, the trial judge conceded that there was no evidence

in Bag record to support the prosecutor’s rank speculation (Tr.

1446).

17

Here, the prosecutor’s rebuttal argument was a partic-

ularly egregious violation of Rule 29.1. Not only was the

prosecutor’s reference a “new argument” but it was, as

even the trial judge admitted (Tr. 1446), wholly unsup-

ported by any evidence in the record. Cf. United States

v. Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973). Nonetheless,

the prosecutor invited the jury to speculate on matters

plainly not part of the record in this case. Occurring as

it did at a point in time when the defense had no further

opportunity to respond, its effect on the jury had to be

particularly pernicious.

The law is well-settled that an improper and prejudicial

summation by a prosecutor requires reversal unless the

error is cured by prompt cautionary instructions from

the trial judge. See, e.g., United States v. Guglielmini,

384 F.2d 602, 606 (2d Cir. 1967). And in an “extremely

close” case such as the one at bar it is the duty of the

trial judge to “intercede sua sponte in order to caution

the jury to ignore the prosecutor’s remarks.” United

States v. Agueci, 310 F.2d 817, 837 (2d Cir. 1962), cert.

denied, 372 U.S. 959 (1963).

This failure to properly instruct the jury or give the

defense an opportunity to respond thus virtually insured

that the particular prejudice Rule 29.1 was designed to

avoid—the lack of opportunity for the defense to answer

a prosecution argument made “in behalf of conviction”—

would work to Petitioner’s disadvantage.

18

POINT Ill

The Government’s Use of Sonically Enhanced and

Filtered Tape Copies Violated the Best Evidence Rule.

At trial in this case, the Government played a tape

recording of a telephone conversation between Marrale

and Mui on the afternoon of December 6 relative to the

meeting at the Kings Plaza Shopping Center later that

afternoon (Tr. 367-68, 374). The Government sought to.

play this tape before the jury because it alleged that con-

tained on the tape was the phrase, “Hold on a minute.

Pause. Yo, Vinnie. Unintelligible. 400. Unintelligible. In

the parking lot” (Tr. 235).

The Government, however, chose not to play the original

tape to the jury. Rather, it played a specially prepared

“sonically enhanced” and filtered version of the tape on

which the crucial phrase—which was all but unintelligible

on the original tape—was mechanically boosted in volume

and filtered so as to highlight the crucial portion on the

tape.

Counsel objected to the admission of this “specially en-

hanced” version of the tape, questioning both the authen-

ticity of the duplicate as well as the audibility of both

tapes, arguing that under the “best evidence” rule, only

the original tape should be utilized (Tr. 247-59, 369-73).°

The trial court over-ruled defense objections and per-

mitted the sonically enhanced duplicate to be played, mak-

ing no inquiry into how the duplicate was prepared (Tr.

256), despite counsel’s objections as to authenticity (Tr.

239-40, 252). This constituted fundamental error.

* Counsel also objected to the admission of two transcripts of

the contested tape which were distinctly at variance with the

transcript originally admitted at the trial of Gambale’s severed

co-defendants in March 1982. Defendant’s objections to the use

of these transcripts was over-ruled, despite their disparity from

the transcript utilized at the first trial. (Tr. 230-40, 252).

19

Under Rule 1003 of the Federal Rules of Evidence, the

“hest evidence” rule is stated thusly:

“A duplicate is admissible to the same extent as an

original unless (1) a genuine question is raised as to

the authenticity of the original or (2) in the circum-

stances it would be unfair to admit the duplicate in

‘ieu of the original.”

In the instant case, both prougs of FRE 1003 are im-

plicated. Counsel raised colorable objections both on the

grounds of authenticity and unfairness, given the dis-

parity in the tapes (and the relevant transcripts) between

the first and second trials. The trial court, accordingly,

should have made far more detailed inquiry into the man-

ner of the “enhanced” tape’s preparation and, in any event,

should have ruled the new tape and new transcripts inad-

missible at the second trial on the grounds of unfairness.

Clearly, where authenticity is questioned the trial court

has an obligation to conduct detailed inquiry into the

manner in which the duplicate was prepared in order to

determine whether there was a failure in the process of

reproduction because of mechanical or human error.* See,

e.g., United States v. Alexander, 326 F.2d 736 (4th Cir.

1964).

Similarly, in Fowntain v. United States, 384 F.2d 624

(5th Cir. 1967), where several noise suppressed but con-

cededly accurate copies of tape recordings were admitted,

the court nonetheless refused to. admit one recording,

noting that the confused mixture of three or four voices

and certain mechanical interference in the original re-

cording made it impossible to accurately reproduce the

conversation transcribed on the original. 384 F.2d at 630.

* Here, the trial judge conducted no independent inquiry at

all, merely accepting the Government’s representation that the

duplicate accurately reflected the original and stating that the

rs could play the original for the jury if he wished (Tr.

20

See also, United States v. Stephenson, 121 F. Supp. 274,

279 (D.D.C. 1954), appeal dismissed, 223 F.2d 336 (D.C.

Cir. 1955) (court refused to admit transcript of re-record-

ings which differed with each other and whose accuracy

could not be determined due to hearing difficulties with

the recording).

Here, counsel specifically contested the accuracy of the

reproduction. Rather than merely listening to the original

and the sonically enhanced version, the trial court had an

obligation to conduct further inquiry into the manner of

reproduction rather than merely accepting the Govern-

ment’s representation that it was accurate.

Under the totality of circumstances, then, it was error

for the trial court to have allowed the sonically enhanced

tapes before the jury. This error was compounded by the

manifest unfairness of permitting the Government to sub-

stitute additional transcripts and a sonically enhanced tape

in the second trial from that which was used in the first

trial. Particularly in light of the fact that this tape al-

legedly contained the only mention of Gambale by name in

the entire case, its admission into evidence hardly may be

called harmless. Cf. United States v. Robinson, 707 F.2d

872, 879 (6th Cir. 1983) (submission of two versions of

transcript prejudicial when tape is significantly inaudible).

Whether premised on the trial court’s failure to make

appropriate inquiry into the tape’s accuracy under FRE

1003(1) or the inherent unfairness of utilizing new tran-

scripts in the second trial under FRE 1003(2) fundamental

error was committed.

21

POINT IV

Congress Did Not Intend to Subject Petitioner to the

Imposition of Cumulative Penalties Under 18 U.S.C.

Sec. 659 & 2113(b) for a Single Criminal Transaction.

It is axiomatic that Congress’ intent to provide multiple

convictions and punishments for the same acts must be

clear and unambiguous. United States v. DiGeronimo, 598

F.2d 746 (2d Cir. 1979); Bell v. United States, 349 U.S. 81

(1955). Absent the requisite clear legislative directive,

doubt will be resolved against fragmenting a single trans-

action into multiple offenses. Ladner v. United States, 358

U.S. 169 (1958).

The same analysis requires that Petitioner’s conviction

in this case for violating 18 U.S.C. Sec. 659 be set aside.

Because that conviction rests on conduct that was fully

within the scope of the bank robbery statute (18 U.S.C.

Sec. 2113(b)) and because that statute sets forth a “com-

prehensive scheme” for punishing the conduct that it pro-

scribes, Appellant’: conviction and sentence under Sec.

2113(b) should have ended matters and precluded any

separate conviction (or sentence) under another statute

for the same criminal conduct.

Simply stated, the multiplicity doctrine as enunciated

in Blockburger v. United States, 284 U.S. 299 (1932) is

inapplicable. Various courts—including this Court—have

declined blindly to apply Blockburger where. other princi-

ples of statutory interpretation demonstrate that Congress

did not intend that two statutes apply to the same conduct.

In Simpson v. United States, 435 U.S. 6 (1978), where

defendants were convicted of two separate aggravated

bank robberies and of using firearms to commit the rob-

beries, in violation of 18 U.S.C. Sec . 2113(a) & (d) and

924(c), this Court held that in a prosecution growing out

of a single transaction of bank robbery with firearms, a

defendant may not be sentenced under both Sec. 2113(d),

22

the aggravated robbery provision of the Federal Bank

Robbery Act, and Sec. 924(c), a general enhancement pro-

vision providing additional penalties for the use of fire-

arms in the course of commission of federal crimes:

Cases in which the Government is able to prove viola-

tions of two separate criminal statutes with precisely

the same factual showing, as here, raise the prospect

of double jeopardy and the possible need to evaluate

the statutes in light of the Blockburger test. That

test, the Government argues, is satisfied in this litiga-

tion. We need not reach the issue. 435 U.S. at 11,

(Emphasis added)

The Court continued:

Before an examination is made to determine whether

cumulative punishments for the two offenses are con-

stitutionally permissible, it is necessary, following our

practice of avoiding constitutional decisions where

possible, to determine whether Congress intended to

subject the defendant to multiple penalties for the

single criminal transaction in which he engaged.

Jeffers v. United States, 432 U.S. 137, 155 (1977). Id.

at 12-13.

This Court itself has acknowledged the boundaries of

Blockburger in Albernaze v. United States, 450 U.S. 333

(1981), when it stated:

The Blockburger test is . “rule of statutory construc-

tion” and because it serves as a means of discerning

Congressional purpose, the rule should not be con-

trolling where, for example, there is a clear indica-

tion of contrary legislative intent. 450 U.S. at 340.

In this case, the law is clear that the Federal Bank

Robbery Act, 18 U.S.C. Section 2113, provides the exclu-

sive remedy for conduct falling fully within its coverage.

Numerous courts have so held. United States v. Camty,

469 F.2d 114 (D.C. Cir. 1972); United States v. Beck, 511

23

F.2d 997 (6th Cir. 1975). Petitioner, accordingly, should

have been prosecuted entirely within the bank robbery

statutory scheme. By venturing outside Section 2113, the

government was able impermissibly to pyramid a maximum

sentence of ten years imprisonment into a twenty year

penalty.

Prince vy. United States, 352 U.S. 322 (1957), one of the

seminal cases on illegal pyramiding, provides a detailed

analysis of the Federal Bank Robbery Act. The Supreme

Court held that a bank robber cannot be convicted of both

robbery and entry of a bank with intent to commit a rob-

bery if the robbery is consummated. The Court concluded

that Congress made entry itself illegal in order to reach

culprits who fell short of their purpose rather than to

fragment the crime for the sake of enhanced punishment.

Predictably, the government invoked Blockburger and

its progeny. Rejecting this view, the Court stated:

None of these [cases] is particularly helpful to us

because we are dealing with a unique statute of limited

purpose and an inconclusive legislative history. 352

U.S. at 325.

Finding the legislative history of Section 2113 to be am-

biguous, the Court thereupon applied the traditional rule

of lenity and precluded the imposition of cumulative

punishments.

The result in Prince stemmed primarily from the Court’s

recognition of the comprehensive nature of the scheme

embodied in Section 2113. The statute carefully subdivides

the offense of bank robbery into a continuum of discrete

steps ranging from attempted entry and entry with intent

to rob; to robbery and attempted robbery by force, vio-

lence, or intimidation; to robbery utilizing a dangerous

weapon; to robbery resulting in death or kidnapping. The

statute correspondingly provides for penalties in increas-

ing degrees of severity in relation to the degree of aggra-

vation of the theft. Unable to asceriain the clear and

24

unambiguous legislativ: intent which would have validated

multiple punishments from the literal language of the

statute itself or its sparse legislative history, the Court

reversed the convictions.

Although in Prince both offenses fell within the scope

of Section 2113, other courts have not deemed this factor

to be determinative. For example, in United States v.

Canty, supra, the defendant was convicted of bank rob

bery by force and violence under Section 2113(d) and of

assault with a dangerous weapon under a catchall provi-

sion of the District of Columbia Code. By indicting in

this manner, the prosecution was able to obtain a sentence

longer than the maximum sentence authorized under the

highest tier of the Federal Bank Robbery Act. Endorsing

the doctrine of Prince, that Section 2113 was all-compre-

hensive in the bank robbery context, the Canty court

vacated the defendant’s conviction for assault in violation

of the local criminal code.

Similarly, in United States v. Leek, 665 F.2d 383 (D.C.

Cir. 1981), the D.C. Cireuit reaffirmed the Canty holding:

But we do not agree with the Government that Leek

is not in position to complain. Of course, we cannot

be certain that he would have received an equally

lengthy sentence had he been convicted under the Fed-

era] statute alone. But more importantly, Leek has a

right to be free of the brand of two felony conwictions,

for negative consequences may flow from the very fact

that his record shows two convictions rather than one.

When, as here, judgment covid not legally have been

entered on both, the accused is entitled to have his

record set straight. Consequently, we hold that the

conviction and sentencing of Leek for assault with a

dangerous weapon atop entry with intent to commit

bank robbery was invalid. (Emphasis added) Id. at

388.

Finding Blockburger to be irrelevant once more, the Court

invoked the rule of lenity and struck down the imposi-

25

tion of enhanced punishment. See also, United States v.

Beck, supra, where the Sixth Circuit held similarly:

While courts have broadly construed the Hobbs Act

(citations omitted) we remain unpersuaded that the

Hobbs Act was designed to reach, or reaches, the ex-

tortion of bank assets, having been intended to curb

labor racketeering. See United States v. Franks, 511

F.2d 25 (6th Cir. 1975). 511 F.2d at 1000.

Citing Canty, the court continued:

However, we need not here consider the applicability

of the Hobbs Act, since we conclude that the Hobbs

Act conviction was improper because the bank theft

statute, being “a comprehensive scheme for prosecut-

ing and punishing persons who rob federally insured

banks,” was intended to exclusively proscribe conduct

within its “coverage.” 511 F.2d at 1000,

Clearly, then, the cumulative sentences imposed on Vin-

cent Gambale for conduct that was fully within the scope

of the bank robbery statute—which sets forth a “compre-

hensive scheme” for punishing the conduct proscribed—

warrants vacatur of his sentence under 18 U.S.C. Section

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: New York, New York \

December 2, 1983

Respectfully submitted,

Epwarp M, Curkorsxy

Russo Smverman & Viraiano

140 Cedar Street

New York, New York 10006

(212) 406-4000

Attorneys for Petitioner

Opinion of the Court of Appeals

UNITED STATES COUR? OF APPEALS

For tHe Seconp Cracuir

At a stated Term of the United States Court

of Appeals for the Second Circuit held at

the United States Courthouse in the City

of New York, on the sixth day of Septem-

ber, one thousand nine hundred and eighty-

three.

Present:

HonorasLte Amartya L. Keanse,

Honoraste Ricwarp J. CarDAMONE,

Honoraste Ratpx K. Win Ter,

Circuit Judges.

No. 83-1109

Unirep Srares or AMERICA,

Plaintiff-Appellee,

v.

Vincent GAMBALE,

Defendant-Appellant,

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

On Consmernation Wuereor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed.

la

2a

Opinion of the Court of Appeals

Defendant Vincent Gambale appeals from a judgment

entered in the United States District Court for the Eastern

District of New York, after a trial before Henry Bramwell,

Judge, and a jury, convicting him of bank theft, in viola-

tion of 18 U.S.C. § 2113(b), theft from an interstate ship-

ment, in violation of 18 U.S.C. § 659, and conspiring to

commit such theft, in violation of 18 U.S.C. § 371. Gambale

was sentenced to ten years’ imprisonment and a $5000 fine

on the bank theft count, ten years’ imprisonment and a

$5000 fine on the interstate shipment theft 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. On appeal, Gambale makes ar m-

ber of challenges to his conviction. We find merit in une.

Gambale contends that the nonhearsay evidence a: trial

was insufficient to connect him with the conspiracy in order

to allow coconspirator statements into evidence against

him, see United States v. Geaney, 417 F.2d 1116, 1120 (2d

Cir.), cert. denied, 397 U.S. 1028 (1969), and that the evi-

dence as a whole was insufficient to convict him. We reject

both contentions. Gambale does not dispute that a con-

spiracy existed, to which one Frank Marrale was a party.

The nonhearsay evidence as to Gambale’s participation

in that conspiracy included the testimony of accomplice-

witness Steven Mui as to the repeated involvement of

Gambale’s car in the preparation for the theft and the

distribution of the proceeds of the theft; Mui’s observa-

tion of a person of Gambale’s description following Mui

and Marrale after the theft; and law enforcement agents’

observation of Gambale’s driving Marrale from Gambale’s

house to a telephone booth from which Marrale arranged

to meet Mui to deliver part of Mui’s share of the stolen

money to him, of Gambale’s evasive driving to and from

the later meeting with Mui, and of Marrale’s delivery to

Mui of a bag of money after Marrale had entered Gambale’s

car empty-handed. The district court correctly ruled that

the government had shown Gambale’s participation in the

3a

Opinion of the Court of Appeals

conspiracy by a fair preponderance of the nonhearsay evi-

dence. See United States v. Mejias, 552 F.2d 435, 445 (2d

Cir.), cert. denied, 434 U.S. 847 (1977); United States v.

Stanchich, 550 F.2d 1294, 1297-1300 (2d Cir. 1977) ; United

States v. Geaney, supra. Other evidence at trial included

Mui’s testimony as to Marrale’s statements that in prepa-

ration for the theft a car bele ving to his coconspirator

would be used and that his coconspirator was involved

with rugs, and evidence that Gambale was a rug dealer.

Viewed in the light most favorable to the government,

Glasser v. United States, 315 U.S. 60, 80 (1940), there was

ample evidence from which a rational juror could conclude

beyond a reasonable doubt that Gambale was guilty of the

offenses with which he was charged.

We find no ground for reversal in the district court’s

refusal to allow Gambale to present witnesses to testify

that FBI Special Agent Donald Winters, upon arresting

Gambale, indicated his belief that Gambale did not meet

the description provided by Mui of the man who had fol-

lowed him and Marrale in Gambale’s car after the theft.

The proffered evidence was of little relevance and minimal

probative value in light of the facts that (1) Winters had

received Mui’s description only second-hand at best, and

in words that differed from those used by Mui, and (2)

the jury had before it both Mui’s actual description and

Gambale’s aciual appearance. The trial judge’s evalua-

tion that the probative value of the evidence would be out-

weighed by the danger of confusing the issues or mislead-

ing the jury was not inappropriate. Fed. R. Evid. 403.

The court’s admission into evidence of a “sonically en-

hanced” duplicate tape of Marrale’s telephone conversa-

tion with Mui was not error. No question has been raised

as to the authenticity of the original tape or as to the

accuracy of the transcripts as prepared from either tape.

The trial judge listened to both the original tape and the

sonically enhanced duplicate tape and concluded that the

duplicate did not contain conversation that was not on the

original. His decision to allow the government to play

A °

J: =:

4a

Opinion of the Court of Appeals

the duplicate for the jury was authorized by Fed. R. Evid.

1003.

We are likewise unpersuaded by Gambale’s argument

that he was “sandbagged” by the prosecutor’s rebuttal sum-

mation. The defense summation had argued that Gambale’s

trip to Manhattan on the day money was delivered to Mui,

for a purpose described by Gambale as the earning of $40

by transporting chairs, made the charge that Gambale had

been a principal in a $2 million robbery entirely implausi-

ble. The prosecutor’s rebuttal merely raised the possi-

bility that Gambale’s trip had a purpose other than the

earning of $40, t.e., that perhaps what was happening

during the trip was that Gambale was collecting “laun-

dered” money to be delivered to Mui. This rebuttal hypo-

thesis, while not supported by direct evidence, did not ask

the jury to draw an unfair inference. There was evidence

that Gambale’s trip to Manhattan was arranged only

shortly after the meeting to deliver money to Mui was

arranged; that Gambale had his employee wait in the van

while he entered the chair factory alone and carried the

chairs out himself despite a chronic back ailment, rather

than having the employee help carry them from the fac-

tory; that Marrale’s partner who was to launder the stolen

money was Gambale; and that when Marrale entered

Gambale’s car just prior to going to deliver the money to

Mui, surveillance revealed that Marrale was empty-handed

whereas the same could not be said of Gambale. At the

sentencing of Gambale, after a thorough review of the

evidence, Judge Bramwell was of the view that the prose-

cution’s hypothesis that the so-called $40 trip might have

been a trip to collect laundered money was not unreason-

able. We agree.

We have also considered Gambale’s other contentions

and find them meritless. The judgment of conviction is

affirmed.

Amaya L, Kearsz, U.S.C.J.

Ricnarp J. Canpamonz, U.S.C.J.

Ratpn K. Worrer, U.S.C.

5a

Order Denying Rehearing

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

At a stated term of the United States Court

of Appeals, in and for the Second Circuit,

held at the United States Courthouse, in

the City of New York, on the fifth day of

October, one thousand nine hundred and

eighty-three.

No. 83-1109

Unirep Strares or AMERICA,

Appellee,

v.

VINCENT GAMBALE,

Defendant-A ppellant.

A petition for a rehearing having been filed herein by

counsel for the appellant, Vincent Gambale,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Dentep.

A. Daniel Fusaro,

Clerk

by Francis X. Gindhart,

Chief Deputy Clerk