Appendix — Bonanno v. United States

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UNITED STATES COUBT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 886, 887—September Term, 1969

(Argued July 8, 1970 Decided July 28, 1970)

Docket Nos. 34806, 34807

Unrrep Sratzs or America, Appellee

v.

Sauvatore Bonanno and Psrzr Notano, Appellants

Before: Farenpiy, Smirn and:Hays, Circuit Judges.

Appeal from judgment of conviction and sentence on trial

to the jury in the United States District Court for the

Southern District of New York, Walter R. Mansfield, Judge,

on charges of mail fraud and conspiracy, in violation of

18 U.S.C. §§ 1341, 1342 and 371, and of appellant Bonanno .

on charges of perjury, in violation of 18 U.S.C. § 1621.

Affirmed.

Rozert Kasanor, New York, N. Y. (Albert J. Krieger,

New York, N. Y., of counsel), for Appellants.

Jay 8. Horowrrz, Asst. U. 8. Attorney (Whitney North

Seymour, Jr., United States Attorney for the South-

ern District of New York, John M. Burns, ITI, Wal-

ter M. Phillips, Jr., and Jack Kaplan, Asst. U. 8.

Attorneys, of counsel), for Appellee.

Smrru, Circuit Judge:

-Appellants were convicted after a jury trial in the United

States District Court for the Southern District of New

York, Walter R. Mansfield, Judge, on one conspiracy count

and fifty-two counts of mail fraud, in violation of 18 U.S.C.

_ §§ 371, 1341, 1342. Appellant Bonanno was also convicted

on two counts of perjury before a grand jury, in violation

of 18 U.S.C. § 1621; appellant Notaro was acquitted on a

single count charging the same offense. We affirm.

A

8

2a

The facts center around the use by Bonanno and Notaro

of the Diner’s Club Credit Card of one Torrillo, their so-

cial acquaintance and business associate. They acquired

the credit card through the efforts of the apparently

violent-natured co-conspirator Perrone (deceased as of

March 11, 1968), who visited Torrillo in January or Feb-

ruary, 1968, and who allegedly intimidated Torrillo into

surrendering his card and then departed with Notaro to

give the card to Bonanno. S

Bonanno and Notaro drove west for a sojourn in Tucson,

Arizona, using the credit card and signing Torrillo’s name

for divers expenses along the way and for purchases once

in Arizona. On one occasion Notaro represented himself

to be Torrillo and used the credit card to convince a Tucson

~ travel agent and an American Airlines employee to sell

him on credit five airline tickets from Montreal to Tucson.

In all, appellants charged fifty-eight bills totaling almost

$2400; the bills were never paid. :

The spending spree came to an end on March 11, 1968,

when Bonanno, using Torrillo’s credit card, attempted to

make a moderate purchase at a Tucson department store

and the sales clerk made a routine call to the Diner’s Club

Credit Approval Department in Los Angeles. The credit

manager, desiring to question the card user, spoke briefly ©

with Bonanno who claimed he was Torrillo and who af-

firmed that he ‘still lived and worked at fictitious places

invented by the credit manager. The manager thereupon

directed the department store to destroy the card and re-

turn it to the Diner’s Club.

The defense claimed that Torrillo or Perrone authorized

the use of the credit card, that appellants intended to pay

the bills, and that Notaro was unaware of any irregularities

in the card’s acquisition and use.

The perjury charges arose out of Bonanno’s testimony

before the grand jury that he stopped using Torrillo’s

credit card as soon as he heard of Perrone’s death (Per-

3a

rone died about seven hours after the card had been im-

pounded), and that he had consulted several Tucson attor-

neys about the propriety of using Torrillo’s credit card,

each of whom advised him it was all right (at trial the

mentioned attorneys controverted Bonanno’s account).

Appellants’ principal claim on appeal is that the trial

judge should have granted their motion for a new trial

pursuant to-Rule 33 of the Federal Rules of Criminal Pro-

cedure due to newly discovered evidence which the prose-

cutor had failed to disclose to the defense. The new evi-

- dence was that at the time of trial, Torrillo, a major prose-

cution witness, was awaiting trial on an indictment in the

same district on a securities fraud charge.

Five days after the verdict, counsel for Notaro informed

the court that he had just learned of the indictment and

that he would bring a motion for a new trial. The Assist-

ant United States Attorney responded that he had first

learned of the indictment against Torrillo a week before

trial when he’ interviewed Torrillo. At that time Torrillo

apparently told the prosecutor that on the day Torrillo was

arraigned he met counsel for Bonanno at the courthouse ~

and revealed to him the securities charge. _

The government argues that whether or not Bonanno’s

counsel was actually informed of the indictment by Tor-

rillo, the prosecutor was justified in believing that Torrillo

had informed.him. Any remaining fear by the prosecutor

that defense counsel did not know of the indictment was

apparently put to rest by the prosecutor’s confidence in

defense counsel’s thoroughness in researching government

witnesses (as demonstrated particularly by their cross-

examination of Torrillo in this case) and by the fact that

Torrillo’s indictment was an easily accessible item of public

record. le

In addition to stressing the purported good faith of the

prosecutor’s belief that defense counsel were already aware

of the indictment, the government contends that the prose-

in

cutor believed that in any event the indictment would have

been inadmissible to impeach Torrillo’s testimony since it

did not charge a felony or a crime involving moral turpi-

tude, and it was not at the time a conviction.' See United

States v. Acarino, 408 F.2d 512, 515-16 (2d Cir.), cert. de-

nied, 395 U.S. 961 (1969).

initia, sthdesiehidinsebensinaihatincmstaiens te

existence of the outstanding indictment in the same district

against a government witness is admissible evidence to

show possible motivation of the witness to testify favorably

for the government. See United States v. Lester, 248 F.2d

329, 334 (2d Cir. 1957). Even if the indictment were in-

admissible at trial, this would not diminish its obvious

value to the defense in preparing for trial and in giving it

a lead to investigate possible governmental promises to the

witness. See United States v. Polisi, 416 F.2d 573, 577-78

(2d Cir. 1969). Moreover, failing to disclose evidence valu-

able to the defense, even on the good faith belief by the

prosecutor that it would be inadmissible at trial, deprives

the defense of the opportunity to argue its admissibility

and the court of its function of deciding the question.”

Note, The Prosecutor’ 8 Constitutional Duty to Reveal Evi-

dence to the Defendant, 74 Yale LJ. 136, 147-48 (1964).

Second, we agree with the trial judge that since Torrillo

told the ‘prosecutor that he had informed Bonanno’ 8 attor-

_ ‘Sabeequent to the trial, Torrillo changed his plea to guilty

conspiracy.

2‘‘It would be unfair not to add that we have confidence in the.

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5a

ney of the indictment, ‘‘the prosecutor understandably,

though erronéously, assumed throughout the trial that

counsel for .Bonauno and Notaro already knew of it.’’

United States v. Bonanno, No. 68 Cr. 969, Unreported

_ Opinion at 12 (S.D.N.Y. Feb. 15, 1970). But while such

an assumption is understandable, it is not justified under

the circumstances of this case. By failing to disclose the

existence of the indictment against Torrillo on its assump-

tion that the defense already knew of it, the prosecution

served its narrow interest of securing a conviction at the

peril of the diligent search for truth, There was nothing

to be lost if the prosecution disclosed to the defense a fact

it already knew; but if the defense did not already know,

then nondisclosure by the prosecution resulted: in the dan-

ger that a line of inquiry was foreclosed to the defense.

Since the prosecution’s belief was only an assumption, this

danger was not insubstantial. ;

Moreover, at trial the defense vigorously attacked Tor-

rillo’s credibility by trying to establish a motive for Tor-

rillo to testify favorably to the government against appel-

lants, by attempting to show Torrillo’s fears of prosecu-

tion on state charges and by pointing to the fact that

Torrillo was never indicted for his admitted lies before the

grand jury. This persistent defense attempt to show that

Torrillo had a motive to cooperate with the government,

together with the prosecutor’s professed confidence in the

thorough preparation of defense counsel, should have

‘*flagged’’ the prosecutor’s attention to the need to dis-

close the existence of the indictment by his office against

Torrillo, since it was unlikely that the defense would in-

_ tentionally forego such a useful piece of evidence.* Bee.

* The argument that the defense may have intentionally avoided

mention of the indictment against Torrillo as a trial tactic to avoid

rehabilitative evidence by the prosecution that Torrillo in June,

1968, Suisun: damacie aaiiaiame

without moment. While prior consistent statements may .

mally Giuhadite te-aidiananiaaiinden ines ae aioe

6a

United States v. Miller, 411 F.2d 825, 831-32 (2d Cir. 1969) ;

United States v. Keogh, 391 F.2d 138, 147 (2d Cir. 1968).

Nondisclosure by a government prosecutor of a known

indictment by his office against an important government

witness cannot be justified by assumptions that the defense

already knows of the indictment or by self-serving judg-

ments as to the admissibility of the indictment or its utility

to the defense. See United States v. Acarino, 408 F.2d 512,

516 (2d Cir.), cert. denied, 395 U.S. 961 (1969); compare,

Leary v. United States, 383 F.2d 851, 868 (5th Cir. 1967),

rev’d on other grounds, 395 U.S. 6 (1969), with United

States v. Peterson, 170 F. Supp. 251, 253 (D. Utah 1959).

In the instant case, however, the nondisclosure was only

negligent. Appellants concede that the nondisclosure was

not an instance of deliberate suppression with purpose to

obstruct the defense and that it was not a failure to dis-

close evidence whose’ high value to the defense could not

have escaped the attention of the prosecution. See Miller

v. Pate, 386 U.S. 1 (1967); Napue v. Illinois, 360 U.S. 264.

(1959) ; Alcorta v. Texas, .355 U.S. 28 (1957). Nor is this’

an instance where the prosecution has suppressed favor-

able evidence after a request for it by the defense. See

Brady v. State of Maryland, 373 U.S. 83 (1963). In such

instances of active prosecutorial misconduct, a lesser show-

ing of the’materiality of the undisclosed evidence will suf-

fice. See United States v. Polisi, 416 F.2d 573, 577 (2d Cir.

1969) ; United States v. Miller, 411 F.2d 825, 831-32 (2d Cir.

1969) ; United States v. Keogh, 391 F.2d 138, 146-47 (2d

‘of a-motive to testify, see, e.g:, United States v. Grunewald, 233

F.2d 556, 566 (2d Cir. 1956), rev’d on other grounds, 353 U.S. 391

(1957), the indictment against Torrillo (in May, 1968) antedated

Torrillo's June, 1968 statementa to the Now York City polien, and /

‘ thus the alleged motive to cooperate was already present, In A

event, the defense’s desire to avoid rehabilitative testimony

<sdeeniietanatitedh olin; hgpethnbeal ‘hey tha deus telies at

trial to bring the indictment to light. A more probable explanation

is that the defense was unaware of the indictment.

}

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7a

“Cir. 1968) ; Kyle v. United States, 297 F.2d 507, 513-14 (2d

Cir. 1961).

Since the nondisclosure here was negligent, appellants

must chow thet the invicynent aguas Cale a a

rial to the verdicts against them.

‘*Negligent or even: intentional failure of the prose-

cutor to disclose an additional item of impeaching evi-

dence would not invariably require | that a verdict be set

aside. ... The test, however, is ... whether ... there

was a significant chance that this added item, devel-

oped by skilled counsel as it would have been, could

have induced a reasonable doubt in the minds of enough

jurors to avoid a conviction.’’ United States v. Miller,

_ 411 F.2d 825, 832 (2d Cir. 1969).

The materiality of the undisclosed evidence should also

‘‘measured by the effect of the suppression upon: detent

ant’s preparation for trial....’’* United States v. Polisi,

416 F:2d 573, 577 (2d Cir. 1969) ; Note, The Prosecutor’s

Constitutional Duty to Reveal Evidence to the Defendant, .

74 Yale L.J. 136, 145-47 (1964). We conclude that disclo- -

sure to the defense of the indictment against Torrillo would

not have aided significantly in its preparation for trial, and

that defense use of Torrillo’s indictment to impeach his

trial testimony would not have raised a doubt in the minds

of the jury as to appellants’ guilt.

- Torrillo’s trial testimony dealt only with the manner that

appeleate acquired the credit card, allegedly through Per-

rone’s intimidation of Torrillo. The central-issue raised

by thé-defense was whether appellants used the card in

good faith. As the trial judge charged, the jury was en-

titled to convict appellants even if Torrillo had authorized

4 We stated this somewhat more generally : , “s

‘*The evidence must also be shown to be material and of some

substantial use to the defendant.’’ United States v. Tomaiolo,.

#.) ; ea’? :

= &

8a

the use of the card and even if appellants intended to pay

the charges, so long as the jury found that appellants in-

tended to mislead the various merchants by impersonating

- Torrillo in order to induce sales on credit which they be-

lieved would otherwise not have been forthcoming. See

p. 4026, infra. The evidence of this latter intent to mislead

merchants is overwhelming.’ Whether or not the card was

extorted from Torrillo bore only indirectly on the factual

question of whether appellants intended to mislead mer-

chants by impersonating Torrillo and signing his name.

Moreover, even if Torrillo’s testimony were discredited by

evidence of a motive to cooperate with the prosecutor, this

would only weaken the evidenee of extortion of the card

‘and would not bolster the defense’s theory that the card’s

use was authorized.®

Appellants’ other contentions require little discussion.

Appellants claim that the judge’s charge to the jury on

5 Some of the evidence is as follows: (1) Bonanno’s abortive im-

personation of Torrillo when talking on the phone with the Diner’s

Club Credit Department; (2) Bonanno’s prior warning from a

Tucson attorney that there -was a forgery problem and that he

should be careful; (3) Bonanno’s offer to the same attorney to

give him a suit if he could tell Bonanno where he could buy clothes

with Torrilio’s credit card; (4) and both appellants’ use of other

credit cards without permission and without payment; (5) Notaro’s

impersonation of Torrillo to purchase airline tickets on credit after

@ previous attempt had failed.

* Similarly, a defense question put to Torrillo about Torrillo’s

equity in Bonanno’s house, bore only indirectly on whether Torrillo

authorized the use of his credit card; to the extent Torrillo was

secured against Bonanno’s debts he would be less fearful of

Bonanno’s use of the card. And the alleged authorization by

Torrillo itself was only one factor in whether appellants intended

to defraud the merchants and the Diner’s Club. In view of the

marginal relevance of the question, the trial judge, in his dis-

cretion, was entitled to sustain the prosecution’s objection in the

absence of any evidentiary foundation for the inference that a

possible indebtedness by Bonanno to Torrillo implied that Torrillo

authorized the use of his credit card.

9a

fraudulent intent deprived them of their defense of good

faith use. The judge charged:

. if you find beyond a reasonable doubt that they

° Canetiiaele schemed to misrepresent themselves as

Torrillo in order to deceive the Diner’s Club and estab-

lishments into furnishing goods and services that would

not have been furnished if they had disclosed their

true identities, . . . you may find that there was a

scheme to defraud regardless whether the card was

borrowed or extorted, regardless whether Perrone gave

the defendants authority to use the card, and regard-

less whether they intended ultimately to pay for the

goods and services.

If on the other hand, you find that the defendants

believed that their representations of their identity was

immaterial, or that they had the right to use the card,

you would find that there was no scheme to defraud.’’

The charge was substantially correct and we perceive no

reason to require proof of intent to defraud the named

credit card holder, Torrillo, when there was sufficient proof

' of intent to defraud sales establishments and the credit

company by impersonating the signing the name of Tor-

rillo. See generally, United States v. Andreadis, 366 F.2d

423, 431 (2d Cir. 1966), cert. denied, 385 U.S. 1001 (1967) ;

_United States v. Baren, 305 F.2d 527, 528 (1962).

Appellants’ contention in regard to the prosecutor’s men-

tion of the manner of Perrone’s sudden death on March 11,

1968, is without mérit.

Affirmed.

10a

UNITED STATES COUBT OF APPEALS

FOB THE SECOND CIROUIT

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 twenty-eighth

day of July, one thousand nine hundred and seventy.

Present: Hon Henry J. Farnowy, Hon. J. Josern Suits,

Hon. Paut R. Hays, Circuit Judges.

Untrep States or Amentoa, Plaintiff-A ppellee,

Vv.

Satvatore V. Bonanno, a/k/a Brut Bonanno, a/k/a Don A.

TorRILLo, and Perer Norato, Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

On Consiperation Wuenegor, it is now hereby ordered,

adjudged, and decreed that the judgments of said District

Court be and they hereby are affirmed.

A. Dantet Fusaro

Clerk

A true copy,

A. Danret Fusano,

[szaL] Clerk.

lla

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

68 Cr. 969

Unitep States or AMERICA

against

Sa.vaTorE Bonanno and Peter Noraro, Defendants.

APPEARANCES: o

Rosert M. Morcentuav, Esq., United States Attorney for

the Southern District of New York, Attorney for United

States of America, By Watter M. Puts, Jr., Assist-

ant United States Attorney, United States Courthouse,

New York, N. Y. 10007

Apert J. Krigcer, Esq., Attorney for Defendant Bo-

nanno, 401 Broadway, New York, N. Y. 10013

Leonarp H. Sanpuer, Esq., Attorney for Defendant No-

taro, 52 Broadway, New York, N.Y. 10004

MansFIELD, D.J.

On November 14, 1969, after a five-day jury trial defend-

ants were found guilty of conspiracy to violate 18 U.S.C.

$§ 1341 and 1342, mail fraud (§ 1341) and use of a fictitious

name or address in furtherance of a scheme to defraud

(§ 1342), Bonanno was also found guilty of perjury based

upon testimony given by him before a federal grand jury

sitting in the Southern District of New York.

The essence of the conspiracy and mail fraud charges

was that pursuant to a scheme to defraud defendants

falsely represented themselves to be one Don A, Torrillo

and by using a Diner’s Club card issued to him induced

commercial establishments, restaurants, stores and airlines

on various occasions in the early part of 1968 to furnish

property, meals and ‘services which would not have been

furnished if the establishments knew that the person pre-

senting the card was not in fact Torrillo.

12a

The proof was overwhelming that in the early part of

1968 defendant Bonanno obtained the Torrillo card and

used it to obtain merchandise and services by falsely rep-

resenting himself to be Torrillo and that on at least one

occasion Notaro also’did so. The Diner’s Club card issued ‘ .

to Torrillo and the contract between him and the Diner’s

Club, both of which were received in evidence, required the

signature of the authorized card holder, Torrillo, for any

goods or services. There was extensive testimony by pro-

prietors of various establishments to the effect that Bo-

nanno or Notaro had defrauded them by falsely represent-

- ing themselves to be Torrillo and by signing Torrillo’s name

in order to obtain the merchandise or services. A Tucson,

Arizona, travel agent and an American Airlines ticket

counter employee at the Tucson Airport testified to Notaro

passing himself off as Torrillo and signing Torrillo’s name

in order to obtain airline tickets for five people from Mont-

eal to Tucson. *

The defendants’ fraudulent spree ended in a Tucson

clothing store on March 11, 1968, when the proprietor de-

tained them while he telephoned the Los Angeles manager

of the Diner’s Club Credit Approval Department; who un-

covered the fraud and instructed the proprietor to retain

the card.

Defendants did not seriously dispute that they had used

Torrillo’s Diner’s Club card and that in doing so they had

falsely represented themselves as Torrillo for the purpose

of obtaining goods and services, An issue was raised, how-

ever, as to the existence of an intent to defraud on their

part, defendants contending that the circumstances indi-

cated merely that they had borrowed the card with Tor-

rillo’s consent, intending ultimately to pay for the goods

and services obtained through use of the card. Although

Bonanno did not take the witness stand, Notaro did so and

testified that he thought Bonanno had authority from

” orrillo.

13a

As proof of defendants’ intent to defraud, the Govern-

ment introduced extensive evidence, including various mis-

statements made by Bonanno when he sought to pass him-

self off as Torrillo upon being interrogated by the manager

of the Diner’s Club Credit Approval Department on March

11, 1968; testimony of a Tucson attorney, Sobel, that he

told Bonanno to be careful about using the card because

of the ‘‘forgery’’ problem; the extent and amount of the

bills run up by defendants through use of the card (some

58 bills amounting to almost $2,400) ; the fact that Bonanno

had previously used a Mobil Oil credit card issued to a

friend, William Levine, without Levine’s authority; Notaro

had earlier used the name ‘‘Peter Joseph’’ in opening an

account with the Southern Arizona National Bank, upon

which he then drew a check which was returned for insuffi-

cient funds; the fact that Notaro had on an earlier occasion

used a credit card issued to a person named ‘‘Miller’’ to

obtain airline tickets; and other similar circumstances.

In addition to the foregoing, the Government also offered

the testimony of Don A. Torrillo, the authorized holder of

the Diner’s Club credit card used by. the defendants, who

testified that he never authorized either of them to uSe the

card, that in late January or early February, 1968, one

Samuel ‘‘Hank’’ Perrone, a mutual friend of himself and

defendants, who is named as a co-conspirator in the indict-

ment, visited Torrillo’s home and in a threatening manner

demanded and obtained the card from him and joined

Notaro in an automobile, Torrillo further testified that

thereafter he took no action because of his fear of the de-

fendants and Perrone, and described an earlier incident in

which Perrone had struck and knocked down an old man.

Torrillo conceded that shortly prior to Perrone’s taking

the card from him Torrillo had, as an accommodation to

Perrone and Bonanno, gone with them to a travel agency

and personally used his Diner’s Club card to purchase for

them two airline tickets after advising them that the agent

would not accept their personal check. On that occasion,

a

i

l4a

however, Torrillo himself signed his signature as the au-

thorized card holder.

Ga cross-examination defense counsel brought out that

or March 11, 1968, Perrone died, and that on April 17, 1968,

Torrillo, after having been unsuccessful in getting Perrone,

prior to his death, to pay for the two airline tickets pur-

chased in January, and after receiving numerous bills that

had been run up on his Diner’s Club card during February

and March, wrote a letter to the Diner’s Club stating that

he had lost his card and had previously reported the theft

to them by letters dated February 2, 1968, and March 7,

1968. On May 28, 1968, at the instance of a Diner’s Club

representative, Torrillo signed an affidavit to the effect that

the card had been lost or stolen on or about February 1,

1968. Torrillo testified that the statements about having

lost the card and previously reporting the loss were false,

and that upon being called to testify before a federal grand

jury in July, 1968, he falsely testified that he had sent let-

ters to Diner’s Club. However, on the same occasion he

also testified before the grand jury that the card had been

taken from him by Perrone. At no time did Torrillo testify

or-advise anyone that he had authorized Bonanno or Notaro

to use his Diner’s Club card. Torrillo’s explanation for his

false statements to the effect that the card had been lost

was that he was afraid of reprisal at the hands of Perrone

and, after Perrone’s death, at the hands of the ‘‘structure”’

or organization. It appears that Perrone was shot dead on

March 11, 1968.

Defendants’ counsel were afforded wide latitude in their

eross-examination of Torrillo and took advantage of the

opportunity to cross-examine him thoroughly in an effort

to discredit him generally as a witness and specifically with

respect to his testimony that he had never authorized Per-

rone or either of the defendants to use his Diner’s Club

card. For instance, in addition to bringing out the fact

that Torrillo had falsely stated under oath to the Diner’s

Club and the grand jury that he had lost his card on or

15a

about February 1, 1968, and had reported the loss earlier ©

to the Diner’s Club, cross-examination revealed that he had

not been indicted for perjury because of his false testimony

(later corrected) before the federal grand jury in the

Southern District of New York, that he had grossly. over-

stated his income in applying to the Diner’s Club for the

card, and that he had falsely described himself as an elec-

trical engineer and as a person having various degrees,

including a Ph.D., B.S. and M.S.6.E. (Master of Science

and Electrical Engineering). It was also brought out that

he had prior real estate business dealings with Bonanno

and Perrone and apparently had sufficient collateral in

property acquired by Perrone in an earlier real estate deal

to cover the charges run up by Bonanno and Notaro on

his card. :

For purposes of cross-examination defendants’ counsel

had available to them transcripts of Torrillo’s 1968 grand

jury testimony and, by subpoena, informal interrogations

by New York City police which took place in Torrillo’s

office on June 25, 1968, and July 9, 1968, prior to any inter-

rogation before the federal grand jury. Tape recordings

of the police interrogations had been made without Tor-

rillo’s knowledge, and the trial judge, after examining the

transcripts, made available to defense counsel those por-

tions of the tapes and transcripts telating in any way to

the subject matter of this case or Torrillo’s direct testi-

mony. After defense counsel had reviewed the transcripts

of the New York City police interrogation of Torrillo, he

was recalled to the stand for further extensive cross-exam-

ination in which counsel for each defendant confronted him

with statements made to the New York City police. How-

ever, although there were some minor inconsistencies be-

tween Torrillo’s testimony at trial and the stateme ats made

to the New York City police in June and July, 1968, the

essential facts stated to the police were consistent with the

version later given at trial. The ‘tapes revealed, for in-

stance, that Torrillo told the police about his use of his

- 16a

card to purchase the two airline tickets in January 1968

as a favor for Perrone and Bonanno. Although he initially

hedged on the question of whether the credit card had been

* * lost by him, hé then revealed to the police that the card had

been taken from him by Perrone on the latter’s visit to his

‘ home and that he (Torrillo) falsely reported and swore to

: the Diner’s Club that his card had been lost when in fact

’ he knew that it had been taken from him by Perrone.

Neither Torrillo’s statements to the police nor his fed-

eral grand jury testimony, both given within a few months

after the events in question, support defendants’ conten-

tion that he authorized Perrone or defendants to use his

card. On the contrary, on June 25, 1968, he told the police

that Perrone ‘‘came to my house and just to get rid of him

I gave him the card,” and on July 9, 1968, he the police

that ‘‘they [referring to Perrone and Bonanno} sort of

bullied me into giving it [the Diner’s Club card] to them

. in the first place’’ and ‘‘Perrone came over to my house to

get the card . .. you know what I mean, so then at that

point I’m saying to myself .. . how am I going to get out

*. Of here, you know, so then they took the card and I didn’t

hear from them....’’ He further advised the police that

he had been shocked when Perrone had “‘hit’’ and ‘‘socked”?

‘the older man who was in his late 50’s or early 60’s.

At the trial defendants’ counsel urged that Torrillo’s

trial testimony was false and that the story given by him

to the police had been motivated by the desire to help the

police in prosecuting Bonanno. This argument was to some

extent supported by the later dismissal of the New York.

City charges against Torrillo. :

On November 19, 1969, five days after the jury’s verdict

finding both defendants guilty, Notaro’s counsel, Leonard

Sandler, advised this court that he had just learned that

Torrillo, along with various others, had beén charged as a

defendant in an indictment filed on May 28, 1968 in the

Southern District of New York, 68 Cr. 471, alleging viola-

PA

,

tions.of federal securities laws, to which he pleaded not

guilty on June 4, 1968, which was pending in November

1969 when the present case was tried. On December 19,

1969 and December 23, 1969, defendants Notaro and Bo-

nanno, respectively, moved for a new trial pursuant to Rule

33, F.R.Cr.P., on the ground that the pendency of the in- -

dictment constituted newly discovered evidence which. the

Government had failed to disclose to the defendants and

which, if disclosed, would have enabled the defendants to

impeach Torrillo before the jury by eliciting and contend-

ing he was motivated to favor the Government by the pros-

. pect of benefit in the disposition of the pending criminal

charges against him. Defendants further contended that

such impeachment of Torrillo might have led the jury to

conclude that he voluntarily gave his Diner’s Clubcard to

Perrone, authorizing him to use it, rather than that it was

extorted or taken by fraud, with the result that the jury

might have acquitted the defendants. In addition defend-

ants move for a new trial on other grounds discussed below.

There can be little question about the fact that a prose-

cutor owes ah uncompromising duty, in the absence of ex-

planatory circumstances, to disclose to defénse counsel the

existence of a pending criminal prosecution by his office

against a witness called by him to testify for the Govern-

ment. Such a disclosure gives defense counsel the oppor-

tunity, which may or may not be exercised as counsel see fit,

to explore on cross-examination the nature of the pending

criminal charge and the possibility that the witness may be

motivated to testify favorably for the Government in the

expectation that he will gain some consideration in the dis-

_ position’ of its pending case against him. Although the

prosecutor’s failure to comply with this duty may under

some circumstances necessitate a new trial, see, e.g., Peter-

son v. United States, 170 F. Supp. 251 (D. Utah 1959), it

does not automatically constitute a denial of due process

or mandate such a disposition in every case. See Leary v. .

United States, 383 F.2d 851 (5th Cir. 1967), reversed on

18a,

other grounds, 395 U.S. 6°(1969).. In determining whether

a new trial should be ordered, we are called upon:to con-

sider the materiality of the pending criminal prosecution,

the deliberateness of the prosecutor’s conduct in failing to

make it known to defense counsel, whether there was a lack

of diligence on defendant’s part, and whether, if the fact

had been known and used by defendants:at trial, there is a

likelihood that it would have significantly affected the

chances of acquittal.. After carefully reviewing the record

and considering the matter in light of these criteria, we do

not believe that a new trial is warranted here.

We are not here dealing with a deliberate suppression of

evidence potentially helpful to the defense, which would

call for application of constitutional standards applied in

cases involving denial of due process. See, e.g., Brady v.

Maryland, 373 U.S. 83 (1963); Miller v. Pate, 386 U.S. 1

(1966) ; Napue v. Illinois, 360 U.S. 64 (1959) ; Giles v. Mary-

land, 386 U.S. 66 (1966). The evidence was never requested

by defense counsel. Nor did the Assistant United States

Attorney in charge of the case intentionally withhold from

defense counsel: the existence of the pending securities

fraud indictment against Torrillo, which was wholly un-

related to the charge against Bonanno and Notaro. In fact

he did not learn of the charge against Torrillo until a week

or so before trial of the present case when he met Torrillo

for the first time as a prospective witness and in the course

of an interview learned of the indictment. At that time

Torrillo advised him that Albert Krieger was present in

Room 318 (the c al calendar part of this court) when

Torrillo pleaded not guilty to the securities fraud indict-

ment and Krieger discussed the matter with Torrillo. Since

the charge against Torrillo was a matter of public record,

the prosecutor understandably, though erroneously, as-

sumed throughout the trial that counsel for Bonanno and

Notaro already knew of it. For reasons hereinafter stated,

their failure to use the pending indictment for impeachment

- upon cross-examination of Torrillo would appear as sound

defense tactics, since the contention that he was testifying

19a

a ale

favorably for the Government in the hope of gaining a

benefit would be countered by showing that he had earlier

given to the New York City Police the same version ag he

gave at trial, which would only serve to rehabilitate and

strengthen the witness. ~

_ In ‘the absence of any deliberate suppression or any re-

quest by defense counsel the most that can be said is that

the prosecutor was negligent. Although the question is not

entirely clear, the standard of materiality to be applied in

determining whether a new trial should be granted, at least _

in this Circuit, appears to be whether the evidence ‘‘would~

probably have raised a reasonable doubt as to. . . guilt in

the mind of a conscientious juror,’’ United States v. Keogh,

‘891 F.2d 138 (2d Cir. 1968); United States ex rel. Romeo

v. McMann, — F.2d — (2d Cir. Nov. 17, 1969), or whether

there appears to be ‘‘a significant possibility that the un-

disclosed evidence might have led to an acquittal or hung

jury,’’ United States .v. Miller, 411 F.2d 825, 831 (2d Cir.

_ 1969). Other circuits have used different approaches to

the issue. See, eg., Levin v. Katzenbach, 363 F.2d 287

(D.C. Cir. 1966) (whether the failure to disclose ‘‘might

have’’ influenced the verdict), Luna v. Beto, 391 F.2d 329

(1967), 395 F.2d 35 (5th Cir. en banc 1968), cert. denied,

394 U. S. 966 (1969).

After a careful review va the trial record, we fail to find

any significant possibility that the pendency of the indict-

ment against Torrillo, had it been known to the jury, might

have raised a reasonable doubt as.to the defendants’ guilt.

Their contention is based upon the assumption that the

jury might have inferred that, although Torrillo had au-

thorized the defendants to use his credit card, he testified

to the contrary in the hope that he would thereby gain some

benefit in the pending prosecution against him. There are

fatal flaws in the argument. The most striking: defect is

that prior to his being called to testify before the federal

grand jury, which was the first occasion of any communi-

cation on his part with the United States Attorney’s office

20a

with respect to the matter, Torrillo gave to the S— O’Neil

and Groggins of the New York City Police Department a

statement that was substantially in accord with his trial

in the present case. The New York City Police were un-

aware of the pending federal indictment against Torrillo. ©

Accordingly there was never any suggestion that Torrillo

might receive consideration from federa! authorities if

he cooperated with them and in any even‘. it would have

been apparent to Torrillo that they were powerless to help

him in the federal arena.

We next note that when Torrillo-thcreafiter appeared

before the grand jury he testified falsely that he had writ-

ten letters to Diner’s Club to the effect that his card had

been lost or stolen. In so testifying he was, as he had ear-

lier indicated to the New York City Police, concerned about

the fact that he had given a false affidavit to the same effect

to the Diner’s Club representative. However, on the same

occasion he told the grand jury what he had already ad-

mitted to the New York City Police, that the card had been

taken from him by Perrone rather than lost or stolen.

There is therefore no support for defendant’s argument

based upon the pending indictment against him. Torrillo

at no time ever testified or indicated that he had authorized

Perrone or the defendants to use the card and hold them-

selves out to be Torrillo. In the one earlier instance when

he purchased airline tickets for Perrone and Bonanno,

there was no fraud; Torrillo personally used and signed

his own card to obtain the tickets for them.

Lastly, we note that the independent evidence of defend-

ants’ fraudulent use of Torrillo’s credit card was over-

whelming. Thus, even if it be assumed arguendo that the

card had been lost rather than taken from him, their guilt

in inducing establishments to furnish property, meals and

services on the false representation that they were Torrillo

was firmly established.

There is conflicting evidence on the question of whether

at least one of the defense attorneys, Mr. Krieger, knew

21a

of the pending indictment against Torrillo. Torrillo states

under oath that he told Krieger about the indictment on

the occasion of Torrillo’s entering a plea of aot guilty to

it on June 4, 1968 in Room 318, and that Krieger was pres-

ent. He is corroborated by the court records for that date

-which show that Krieger was present in Room 318 on two

other cases. Mr. Krieger, replying under oath, while con-

ceding that he met Torrillo outside of Room 318 on the

same date, denies knowledge of the indictment. It becomes

unnecessary to resolve this issue, since the present motion

must be denied for the reasons stated.

Defendants further moved pursuant to Rule 33, F.R.Cr.P.,

for a new trial on the grounds that they were prejudiced

by the fact that some jurors were aware of a connection

between the defendant Salvatore Bonanno and one Joseph

Bonanno, his father, a reputed underworld Mafia figure,

and by the disclosure at trial that Perrone was apparently

murdered. Each prospective juror was independently ex-

amined on the voir dire out of the presence of all other

jurors, which resulted in the elimination of any jurors who

indicated they would be affected by anything previously

heard or read with respect to Joseph Bonanno. Nearly all

jurors finally selected had never heard of Joseph Bonanno.

The one or two who had heard of him clearly and unequiv-

ocally stated that they were able to judge the case solely

on the evidence to be introduced and not be affected by

anything they had previously heard about the Bonannos.

As for the reference to the death of Perrone, since Tor-

rillo’s state of mind was actually put in issue by defend-

ants and_he testified that in the period after Perrone’s

death he did not reveal all of the circumstances regarding

Perrone’s taking of his card because of his fear of defend-

ants, Perrone’s violent death was not wholly irrelevant.

However, in the exercise of our discretion we instructed

the jury, when the fact was mentioned by one witness, not

to consider the circumstances of his death in judging the

case against the defendants. Under all of the circumstances

we are convinced that the defendants received a full and

22a

fair trial by a jury which rendered a°’verdict based solely

on the evidence that was admitted for its considerdtion.

Defendants also have subpoenaed from the Police of New

York City and Nassau County wiretaps of conversations

participated in by defendant Bonanno and they have been

permitted to listen at length to tape recordings of these

conversations. Since the conversations proved not to be

related to the subject matter of this case or furnish any

information that might be construed as leads through which

the present case was developed, no motion to suppress has

been made.

For the foregoing reasons the defendants’ various mo-

tions, including renewal of motions made at trial for judg:

ment of acquittal on the ground that the evidence was in.

sufficient to sustain the convictions, are denied.

It is so ordered.

Watrter R. Mansrieip

U.S.D.J.

Dated: February 18, 1970.

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