Before LUMBARD, Chief Judge, and CLARK and MARSHALL, Circuit Judges.
The defendant, Charles Tomaiolo, appeals from his fourth conviction before a jury, in the United States District Court for the Eastern District of New York, of criminal acts in connection with a bank robbery which occurred in Brentwood, New York, on November 29, 1955. On this fourth trial, the defendant was found and adjudged guilty of robbing, and conspiring to rob a bank in violation of 18 U.S.C. §§ 2113(a), 371. Other counts of the indictment were disposed of before submission of the case to the jury.
The robbery was committed by two armed men, one of whom, Abraham Nirenberg, was convicted after a separate trial, and his conviction has been affirmed. United States v. Nirenberg, 242 F.2d 632 (2 Cir.), cert. denied, 354 U.S. 941, 77 S. Ct. 1405, 1 L. Ed. 2d 1539 (1957). The second of the two men kept most of his face concealed during the robbery, and at each of the four trials the primary evidence identifying the defendant as Nirenberg's associate consisted of testimony of Nirenberg's mistress, Pauline Katz (sometimes known as Pauline Newman). According to her testimony, she assisted Nirenberg and the defendant in their preparations for the robbery, met them at a pre-arranged rendezvous immediately after the robbery, and was present at Nirenberg's home on the day following the robbery when the two men divided the loot. There was other testimony, including descriptions and partial identifications of the defendant by bank employees, corroborating Pauline Katz's account of the robbery. Our opinion reversing the defendant's conviction at the first trial, 249 F.2d 683 (2 Cir., 1957), contains a more complete account of the evidence, which need not be detailed here. The second trial, which resulted in the defendant's conviction on the conspiracy count and a disagreement among the jury on the substantive counts, was reversed by us because of the government's failure to comply with the requirements of the Jencks Act, 18 U.S.C. § 3500. 286 F.2d 568 (2 Cir., 1961). At the third trial, made necessary by the jury's disagreement at the second, the defendant was convicted of the substantive counts of the indictment, which conviction we reversed for the same failure to comply with the Jencks Act that prompted reversal of the second conviction. 280 F.2d 411 (2 Cir., 1960).*fn1
We think it unfortunate in the extreme that the defendant, first brought to trial in October 1956, has been subjected to this long series of trials. However, as discussed hereafter, we do not think that this conviction should be set aside solely because it was preceded by three other trials on the same charges. And, since we do not find reversible error in the conduct of this trial, the conviction is affirmed.
The defendant objects first to the admission of testimony of Sergeant Keating, a New York State police officer, concerning the physical appearance of the defendant on January 25, 1956, shortly after the robbery was committed. The sum total of Sergeant Keating's testimony was that the defendant was somewhat heavier and somewhat fuller of face in 1956 than he was at the time of the trial; a photograph of the defendant taken by the police was excluded. Presumably this testimony was relevant in connection with the identification of the defendant by employees of the robbed bank. Later on in the trial, the defense called as a witness another state police officer who saw the defendant at the same time as Sergeant Keating and used the officer's testimony in the same connection: to cast doubt on the employees' identifications.
The basis of the objection to Sergeant Keating's testimony is that the defendant was unlawfully in custody at the time the observations were made. He had been arrested as a parole violator*fn2 and brought to the state police barracks at Hawthorne, New York, where Sergeant Keating saw him. The defendant offered to show that the arrest was made without the warrant required by New York Correction Law, McK.Consol.Laws, c. 43, § 216 for the apprehension of parole violators. Accepting this contention as true, we nevertheless think Sergeant Keating's testimony was admissible. At no point did the defense suggest that the defendant had not violated his parole or that the police did not have good reason to believe that he had. (The parole violation was not the crime of which he now stands convicted.) The constitutional rights of the defendant were not infringed, and the mere personal observations of a state official are not inadmissible in a federal court, simply because the defendant's arrest as a parole violator may not have been in accordance with the procedures required by state law. Compare Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Nor, assuming the defendant's continued detention to have been unlawful, was the testimony inadmissible under the rule of McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), which requires the exclusion of statements obtained from a defendant by federal officials during an unlawful detention. The McNabb rule was adopted by the Supreme Court as an "exercise of its supervisory authority over the administration of criminal justice in the federal courts." 318 U.S. at 341, 63 S. Ct. at 613, 87 L. Ed. 819. It was designed to prevent that easy "gliding into the evils of 'the third degree,'" which might follow from the too frequent "tempting utilization of intensive interrogation." Mallory v. United States, 354 U.S. 449, 453, 77 S. Ct. 1356, 1358-1359, 1 L. Ed. 2d 1479 (1957). See generally Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Sergeant Keating was a state, not a federal, official; the defendant's arrest was for parole violation and not for interrogation. Accordingly, the McNabb rule and its rationale have no application.
A second claim of error is that the trial judge "forced" counsel for the defendant to call Nirenberg as a witness; Nirenberg's testimony on cross-examination, such as his admission of long association with the defendant, was undoubtedly damaging to the defense. On the defendant's motion, the court had ordered Nirenberg to be brought east from Alcatraz where he was serving a sentence on a conviction of the bank robbery for which the defendant was being tried. At one point in the trial, before defense counsel had had an opportunity to examine Nirenberg, the judge mentioned before the jury that Nirenberg was going to be produced in court. Later, in chambers, defense counsel moved for a mistrial on the ground that the judge's casual remark left counsel no choice but to put Nirenberg on the witness stand. The judge overruled the motion, but offered to charge the jury that counsel was not required to put any witness on the stand and that the jury was not to be "concerned" about counsel's failure to do so. The judge then said, still in chambers:
"* * * I don't think there is any harm here because you have asked for Nirenberg, and I think the jury should know I brought him on, whether it is your request or the district attorney's request, because I will charge that it was due to the fact you requested it that Nirenberg was brought here and it was the only way he could get here. That does not mean you would have to use him, and I would charge the jury that both of you have the right and that it has no effect on it and it is not to be used against him, and I will charge the jury to that effect and I will take that charge." Transcript pp. 527-528.
It is this exchange which, it is asserted, compelled counsel to call Nirenberg as a witness and expose the defendant to the dangers of Nirenberg's cross-examination.
Before Nirenberg gave his testimony, the jury had heard only that Nirenberg would appear; possibly the jury might have inferred from the judge's remark that his appearance had been requested by the defense. Had defense counsel not called Nirenberg, we fail to see how the jury could have drawn unfavorable inferences from this fact. Particularly in view of the offer to charge, we do not think the judge's later remarks in chambers required defense counsel to call Nirenberg. The defense remained free to do as it chose. Had the witness not been called and had the judge improperly commented to the jury on his absence, it would have been time enough to object at that point.
The defendant raises issues under the Jencks Act, 18 U.S.C. § 3500. Pauline Katz was interviewed by agents of the F.B.I. prior to the first trial. The agents took notes at the interviews which they later dictated to a stenographer for transcription. The transcriptions were checked against the original notes which were then destroyed. At the trial, the defense called for the production of the transcribed statements and received them. On the government's failure to produce the original notes, long since destroyed, the defense moved that the witness' testimony be stricken. The motion was denied.
We need not consider the entirely hypothetical question whether these notes would have been covered by the Jencks Act had they been available. They were destroyed in good faith (prior to the passage of the Act) and there is no reason to believe that the records turned over to the defense did not accurately and fully reflect the content of the notes. The failure to produce them did not require that the witness' testimony be stricken. See the dissenting and concurring opinion of Mr. Justice Frankfurter in Campbell v. United States, 365 U.S. 85, 99, 81 S. Ct. 421, 5 L. Ed. 2d 428 (1961); Campbell v. United States, 296 F.2d 527, 531 (1 Cir., 1961), cert. granted, 371 U.S. 919, 83 S. Ct. 295, 9 L. Ed. 2d 229 (1962); United States v. Aviles, 197 F.Supp. 536, 556 (S.D.N.Y.1961).
Objection is made to the court's refusal to enforce a subpoena which, according to defense counsel, would have shown that the defendant was at work on the day following the robbery, when Pauline Katz testified that he and Nirenberg had been splitting up the loot. The subpoena was served shortly before the trial was scheduled to end, although, since the records had been produced at the first trial, defense counsel must long have been aware of their existence. The employer advised the court that the records could not be produced for several days, until after the presentation of evidence was to have ...