Appeal from judgments of the United States District Court for the Eastern District of New York convicting appellants, after a jury trial before Thomas C. Platt, Judge, of bank robbery and conspiracy to rob a bank. 18 U.S.C. §§ 2113, 2, and 371. Affirmed as to Sally Di Stefano. Reversed as to Linda Di Stefano.
Mansfield, Circuit Judge, Smith, Chief Judge,*fn* and Palmieri, District Judge.*fn**
Sally Di Stefano ("Sally") and Linda Di Stefano ("Linda") appeal from judgments of the United States District Court for the Eastern District of New York, Platt, J., convicting them, after a jury trial, of bank robbery and conspiracy to rob a bank. 18 U.S.C. §§ 2113, 2, and 371. The indictment charged appellants Ronald Blanda,*fn1 and Patrick Edwards*fn2 with three crimes arising out of a robbery of the Chemical Bank in Holtsville, New York on May 28, 1976. Counts I and II charged the defendants with bank robbery and bank robbery with use of a dangerous weapon, respectively. Count III charged them with conspiracy. Sally was found guilty on all three Counts; Linda was found guilty on Counts I and III, and not guilty on Count II.
Prior to trial, Sally moved to suppress a bank bag and $223 in currency seized by FBI agents and Suffolk County police officers at the time of her arrest on June 2, 1976. The Court conducted a suppression hearing at which a Suffolk County police officer and an FBI agent testified. This testimony established that Patrick Edwards and Ronald Blanda were arrested at approximately 9:00 a.m. on June 2, 1976 and taken to the Suffolk County Police Station for questioning. After being advised of his rights, Edwards was interviewed by an FBI agent and a detective. Edwards stated that he had been involved in the bank robbery and that the Di Stefano sisters had participated. He stated that Sally had driven the car used by the robbers and that Linda had "cased" the bank prior to the robbery. The information provided by Edwards was partially corroborated by other information the agents had at that time. Specifically, they knew that a female had been seen driving the car used by the robbers and that the Di Stefano sisters and Ronald Blanda were friends.
Based on this information, the agents and officers proceeded to Sally's house in Centereach. They knocked on the door and were admitted either by Sally or her child. Sally was placed under arrest. She was wearing a nightgown and bathrobe at the time, and the agents requested that Sally retire into her bedroom to get dressed. Officer Roseanne Christie accompanied Sally into the bedroom. Sally opened the door to a closet which was approximately three feet from Officer Christie. On the floor of the closet on top of various other articles, Officer Christie observed what appeared to be a bank money bag. Because of the design of the room and the location of the closet, Officer Christie could not view Sally's movements or the closet without entering the bedroom. The bank money bag was later seized by the Suffolk County police after they were advised of its presence by Officer Christie.*fn3
While she was getting dressed, Sally removed from a pocket in her robe a quantity of currency wrapped in a rubber band. Sally handed this money to Officer Christie, stating "This is mine and I want this back." She also stated that this was money to be used for food stamps.
At the time of Sally's arrest and the seizure of these items, the officers did not have an arrest or search warrant. Based on the testimony at the suppression hearing, the district court denied the suppression motion.
The evidence adduced at the trial, viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Mariani, 539 F.2d 915 (2d Cir. 1976), established that Edwards had known Sally for many years and that, through her, he had become acquainted with her sister, Linda. He was also a friend of Ronald Blanda, with whom he traveled daily to and from a methadone treatment clinic. Approximately four months before the robbery, Blanda and Edwards began discussing the idea of robbing a bank. Blanda suggested that a particular branch of the Chemical Bank in Holtsville, where he was a customer, seemed to be a good bank to rob. Blanda took Edwards to look this bank over approximately a month before the robbery in order to determine whether there were any guards or bank surveillance cameras, how many tellers there were, and how much money the bank took in. At about this time Edwards sawed off part of the barrel of a shotgun he owned in order to make it easier to conceal.
About two days before the robbery, Blanda showed Edwards a newspaper clipping describing a bank robbery which Blanda claimed he had committed and from which he stated he obtained $2,000. On the morning of May 28, 1976, when Edwards awoke, he discovered that Blanda was sitting in the parlor of his house in Ronkonkoma. During their ride to the methadone treatment clinic, the two men decided to rob the Chemical Bank that day. They discussed the robbery further on their trip back to Edwards' house from the treatment clinic. When they returned to Edwards' house, they collected the sawed-off shotgun and some clothing and placed them in a bag. One of them telephoned Sally in order to obtain a car. While waiting for the car to arrive, Edwards and Blanda decided that they should make a final check of the bank before the robbery in order to determine if there was a guard or if the counters had been moved.
Shortly thereafter, Linda and Mary Lou Morra, a maid employed by Sally, met Edwards and Blanda in a car. Morra was driving the car. Edwards or Blanda told her to stop at the bank so that Linda could get change. Edwards testified that the purpose of this stop was to allow Linda to check the bank for guards and camera locations. This purpose, however, was not discussed in the car because Edwards and Blanda did not want Morra to know of the bank robbery. Edwards testified that he did not know how he or Blanda communicated to Linda that she was to inspect the bank for guards and cameras. When they stopped at the bank, Blanda or Edwards gave Linda a dollar and sent her into the bank for change. When Linda returned, she nodded her head which Edwards testified was an indication to him that "everything was the same, there was no guard and the cameras were in the same position."*fn4 Nothing was said in this regard by Blanda, Edwards or Linda. After a brief stop at Blanda's house, the four proceeded to Sally's residence at which time Linda and Morra departed.
Sally assisted Edwards and Blanda with their disguises by providing them with stockings for mask and a big floppy hat. Sally telephoned a friend named Boyle to ask if she could borrow his car. After the car was delivered, Sally drove Edwards and Blanda to a parking lot at Suffolk Community College where they changed the license plates on the car and then proceeded to the bank. Edwards and Blanda committed the robbery while Sally waited in the car. Edwards entered the bank first and ordered everyone present to get down. He was wearing the big floppy hat and carrying the shotgun concealed under a jacket. Blanda then entered with a stocking covering his face and vaulted the counter. After collecting approximately $4,700 in coins and currency, Blanda jumped back over the counter, and the two men ran to the car. As they fled from the bank, Blanda was driving and Sally was crouched between the two men in the front seat.
Blanda drove to the Suffolk Community College parking lot where he and Edwards removed the license plates. They then drove to Sally's brother's house, which was nearby, where Blanda and Edwards removed their outer clothing. Sally then drove the others to Blanda's mother's house where she left them to return the car to Boyle. Blanda and Edwards hid the shotgun in the basement and divided up the money obtained from the bank. Blanda and Edwards each took $2,000, leaving the "singles" and two-dollars bills (approximately $700) for Sally. No money was set aside for Linda. Sally subsequently returned to the house by taxi cab.
That evening, Sally, Blanda, Edwards, and a friend of Edwards drove to Manhattan and purchased cocaine. Although Edwards testified that he did not give Sally her $700 share of the proceeds of the robbery and did not see Blanda do so, Edwards did testify that he saw Sally hand Blanda a "stack of singles" that evening for the purchase of the cocaine.
Edwards' testimony with respect to the details of the robbery was corroborated by the testimony of other witnesses. In addition, two customers at the bank testified that they observed the car used by the robbers and their descriptions of it matched the description of Boyle's car. Boyle testified that Sally had borrowed his car on the day of the robbery. The license plates on the car used by the robbers, which were observed by witnesses at the bank, matched those which had been stolen in February 1976 from a car parked next door to Sally's house.
Linda was arrested on June 2, 1976 when she arrived at Sally's house while Sally was being taken into custody by the police. Officer Christie testified that at the time of Linda's arrest Sally was "quite emotional", screaming obscenities and trying to kick one of the officers. Officer Christie testified that Linda tried to calm her sister down. Linda was then taken to the Suffolk County Police Department, advised of her rights, and interviewed by FBI agent Sweeney. Sweeney testified that Linda stated to him that she had spent most of the day of May 28, 1976 at her parents' home in Centereach; that she had been to the Chemical Bank in Holtsville occasionally; that she was positive that she had not been in the bank on May 28; that she could not recall any time at which she was together with Blanda, Edwards, and Sally; that she was positive that the four of them had not been together on May 28; and that to the best of her knowledge neither she nor Sally had ever borrowed a car from Boyle. Agent Sweeney made handwritten notes ...