Appeal from judgments of conviction for armed bank robbery entered in the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Affirmed.
Lumbard and Feinberg, Circuit Judges, and Albert W. Coffrin, District Judge.*fn* Lumbard, Circuit Judge, concurring and dissenting.
Lamont Floyd and Peter Olivo appeal from judgments of conviction in the United States District Court for the Eastern District of New York after a five day jury trial before the Honorable George C. Pratt, District Judge. They were convicted of the armed robbery of the Chase Manhattan Bank on Rutland Road in Brooklyn, New York, on October 31, 1975, in violation of 18 U.S.C. §§ 2113(a), (d), and 2.*fn1 Appellant Floyd challenges the admission of certain testimony as hearsay. Both appellants claim prejudicial error due to Judge Pratt's charge on credibility and the prosecutor's summation concerning the availability of witnesses. In addition, both claim error in the admission of the testimony of one witness after the Government's alleged failure to comply with Rule 12.1(b) of the Federal Rules of Criminal Procedure. We affirm.
The evidence at trial indicates that on October 31, 1975, at approximately 10:25 a.m. the Chase Manhattan Bank on Rutland Road in Brooklyn, was robbed by three armed men*fn2 wearing Halloween masks. The bank's records showed that $8,591.00 had been stolen. Because the men wore masks, there was no positive identification of the robbers. The bank guard was able to describe the perpetrators generally but was unable to specifically identify the appellants. Photographs taken by a security camera were introduced into evidence. One of the pictures showed a portion of the side of one robber's face. Through a courtroom demonstration the jury was afforded an opportunity to compare the appearance of the person in that picture with appellant Floyd.
The Government's principal witness was Xavier King, who was involved in the bank robbery as the driver of the getaway car. According to the testimony of King, the robbery was planned during the early morning hours of October 31, 1975 at an apartment on Saratoga Avenue in Brooklyn. King testified in detail as to the participants, their roles in the crime, the weapons used and the particulars of the robbery, its planning and aftermath. King's testimony indicated that Beverly Boston, Olivo's girlfriend, was present in the apartment on the morning of the robbery, and that when King and the others returned to the apartment after the robbery, Suqulia Vantessa "Van" Manning (Floyd's girlfriend), "Debbie", Barry "Tuba" McDaniels and "Little Mike" were there.
The Government also called James Duffin as a witness. Duffin testified that on the morning after the robbery Olivo asked him to take a walk. In the course of the walk Duffin agreed to help Olivo set fire to the getaway car, which had been parked on the street behind the Saratoga Avenue apartment building in which the robbers had headquartered their criminal activities. Duffin testified that a man standing on the stoop of a nearby building witnessed the arson of the automobile. The testimony further indicated that Olivo told Duffin that he, Floyd and others had robbed a bank.*fn3
Olivo and Floyd each presented alibi defenses, claiming to have been at places other than the bank at the time of the robbery. Evidence of their respective defenses was presented through the testimony of the appellants and through the testimony of their girlfriends.
We first consider the Government's summation and Judge Pratt's charge to the jury. With respect to the charge, appellants contend that the jury was not sufficiently cautioned as to the unreliability of accomplice testimony, and that the jury should not have been particularly instructed with regard to the credibility of the defendant's testimony. We find that Judge Pratt's charge was adequate both with respect to accomplice testimony, United States v. Dioguardi, 492 F.2d 70, 82 (2d Cir.), cert. denied, 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974); United States v. Projansky, 465 F.2d 123, 136 n.25 (2d Cir.), cert. denied, 409 U.S. 1006, 93 S. Ct. 432, 34 L. Ed. 2d 299 (1972); United States v. Falange, 426 F.2d 930, 933 (2d Cir.), cert. denied, 400 U.S. 906, 27 L. Ed. 2d 144, 91 S. Ct. 149 (1970), and the defendant's testimony,*fn4 United States v. Martin, 525 F.2d 703, 706 (2d Cir.), cert. denied, 423 U.S. 1035, 46 L. Ed. 2d 410, 96 S. Ct. 570 (1975); United States v. Sullivan, 329 F.2d 755, 756-57 (2d Cir.), cert. denied, 377 U.S. 1005, 12 L. Ed. 2d 1054, 84 S. Ct. 1943 (1964).
The appellants also argue that the Government's rebuttal summation, which referred to defendants' power to subpoena witnesses, deprived them of their right to rely on the Government's failure of proof. When considered in light of the charge, the prosecutor's remarks, which were in response to defense summations referring to the failure of the Government to produce certain witnesses,*fn5 did not deny the defendants their right to rest upon the prosecution's burden of proof. United States v. Crisona, 416 F.2d 107, 118 (2d Cir. 1969), cert. denied, 397 U.S. 961, 25 L. Ed. 2d 253, 90 S. Ct. 993 (1970).*fn6
Although we find appellants' argument for the total exclusion of the Duffin testimony*fn7 to be meritless, we nonetheless find that Duffin's testimony does raise a question of some consequence. Duffin testified that Olivo admitted that he, Floyd and others had committed the bank robbery.*fn8 We conclude that the admission of such testimony ...