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United States v. Moskowitz

decided: June 29, 1978.

UNITED STATES OF AMERICA, APPELLEE,
v.
ARNOLD B. MOSKOWITZ, DEFENDANT-APPELLANT.



Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Ellsworth A. Van Graafeiland, Circuit Judge, after a jury trial. Appellant was convicted of armed bank robbery. Affirmed.

Before Friendly, Mulligan and Meskill, Circuit Judges.

Author: Meskill

Appellant, Arnold B. Moskowitz, was found guilty of armed bank robbery, 18 U.S.C. ยงยง 2113(a) and (d), after a six-day jury trial in the United States District Court for the Eastern District of New York, Ellsworth A. Van Graafeiland, Circuit Judge, sitting by designation. On this appeal from his judgment of conviction, appellant does not challenge the sufficiency of the evidence; instead, he argues that the trial judge erred in failing to suppress an in-court identification by one of the bank employees and in admitting a police sketch of the bank robber.

Both the government's case and the defense were relatively simple. The principal issue was one of identification. The bulk of the government's case consisted of testimony by three bank employees who had had ample opportunity to observe the bank robber and who positively identified the appellant. Appellant's alibi defense was that he had been at home, in bed, asleep at the time of the robbery. Appellant testified that he had slept late on the day of the robbery. This was supported, circumstantially, by the observations of his parents and two sisters. One bank employee, who had known the appellant as a bank customer prior to the robbery, and who had observed the robber briefly, testified that the appellant was not the robber.

FACTS

The robbery of the Chemical Bank at 2730 Coney Island Avenue in Brooklyn began at approximately 8:45 a. m. on Thursday, June 3, 1976, when bank manager Michael Gleason arrived for work and parked his car in the bank's rear parking lot. As Gleason got out of his car, he heard someone call him by his first name. He turned and saw the bank robber, whom he later identified as the appellant, sitting alone in a red Ford Torino parked nearby. The robber asked, "don't you recognize me?" Although Gleason could see his face clearly, he replied that he did not know him. Gleason moved closer to the robber, who asked a second time, "are you sure you don't recognize me?" Gleason again said he did not. He moved closer, and the robber told him to take a closer look and asked, "you're sure you don't recognize me?" By this time Gleason had reached the robber's car, and he said again that he did not recognize the robber. Then the robber lowered a copy of the Daily News to reveal a black .38 caliber revolver which was pointed at Gleason. He instructed Gleason to walk around the front of the car and sit in the passenger seat. Gleason complied, and the robber told him that "they" were calm professionals who were going to rob the bank and who would bomb Gleason's home the correct address of which was mentioned if he did anything wrong. The robber then displayed a hand grenade and said that if Gleason did anything wrong once inside the bank he would throw it at the other bank employees. Gleason recognized the grenade, for he had taught the throwing of hand grenades while in the service. The robber also displayed a walkie-talkie, which he turned on long enough for Gleason to hear what sounded like official communications; "they" would be monitoring police calls, Gleason was told. The robber also mentioned that the police were slow to respond to calls originating in the bank's precinct.

At 8:55 a. m., the robber announced that it was time to enter the bank. Before the two got out of the car, another individual walked into view from around a corner of the bank. The robber said that this individual was with him and that yet another accomplice was covering the bank's front door. Gleason used his key to open the back door of the bank, which he was told to leave open, and the robber followed Gleason into the bank. When they reached the main area of the bank, the robber stood behind one of several large panels which were being used to display an art exhibit. As instructed by the robber, Gleason called to Joyce Pyle, the bank's assistant manager, and to Frances Criscione, the chief clerk, and told them to join him. The three bank employees entered the bank's main vault, followed by the robber. Gleason told Pyle and Criscione, "Don't do anything foolish, I don't want anybody hurt, we are being robbed." In order to open the vault, Gleason and Criscione had to set separate combination locks, which they accomplished after a few initial mistakes. Criscione was spurred along by the robber's mention of the neighborhood in which she lived. The robber, who had previously told Gleason that he knew the vault contained a lot of money, said he wanted "the bags." This was a reference to two large bags containing a total of $270,000 which had been prepared the previous evening for shipment by armored carrier to the Federal Reserve. Gleason slid the bags toward the robber, who picked them up and fled out the open back door and, apparently, into the waiting red Ford. Pyle then turned in the alarm and called the authorities. As far as the record discloses, neither the car, the gun, the grenade, the walkie-talkie, the bags, the accomplices nor the money has yet been found.

Gleason, Criscione and Pyle each testified unequivocally that appellant was the person who had robbed the bank. The rest of the government's evidence was susceptible of conflicting inferences. Appellant had been an auxiliary policeman, and from this the government urged the jury to infer that appellant possessed the robber's familiarity with police radios and practices. Appellant, on the other hand, argued that this evidence showed that he was an individual who respected the law. He pointed out that familiarity with police radios is common and that radios capable of monitoring police broadcasts are widely available. The government also presented evidence of flight. On the afternoon prior to the robbery, appellant had made a one-way reservation on a National Airlines flight to Florida. He had flown to Florida on the afternoon of the day of the robbery, spent about one week traveling around Florida in a rented car, and then returned to New York in a car he had obtained from a car transportation agency. The government argued that this showed appellant's consciousness of guilt. The jury was asked to infer that appellant had kept on the move, returning home only when he was confident that the coast was clear. As is often the case with evidence of flight, an innocent inference was also available. The appellant explained that about the time of the robbery he had just left a job at a gas station and was about to begin work for Senator James Buckley's reelection campaign and his trip to Florida had been a long-planned vacation before beginning the new job. Several witnesses supported this explanation. Finally, the government sought to prove that appellant, who had been a customer of the bank for some time, and who, in the six months prior to the robbery, had entered the bank an average of four times a month to make deposits, did not enter the bank at all during the period between the robbery on June 3 and his arrest on August 12, 1976. The government argued that this too showed consciousness of guilt. Appellant's explanation for this was that after he began work on the Buckley campaign it was more convenient to bank at a Chemical branch near his job in Manhattan.

The defense presented several witnesses. The first was Kenneth McGuinness, who had been an officer assistant at the bank. He testified that when he arrived for work on the morning of the robbery he had noticed someone sitting in the red Ford reading a newspaper. Later, in the bank, he had heard Gleason call out to Criscione and Pyle, and he had seen the robber for 5 or 10 seconds, from a distance of 30 feet, as the robber entered and then exited the vault area. McGuinness had known appellant as a customer of the bank, and he said that appellant was not the robber. On cross-examination, he admitted that he had told the prosecutor and defense counsel that he was not "one hundred percent sure" or "positive" that appellant was not the robber. He also testified that he had not seen the robber carrying any money bags, although at the time of trial he remembered having seen some object in the robber's left hand as he left the bank.

Other defense witnesses included appellant's supervisor on the Buckley campaign staff and his former employer, the manager of a gas station near the bank and appellant's home. Each testified that appellant had planned to take a vacation in Florida. The gas station manager testified that he had cashed pay checks for appellant after the robbery and that appellant had gone to get change for him after the robbery, which he had done on many occasions prior to the robbery. He did not know whether appellant had obtained the change at the bank, as he had in the past, or elsewhere. Another witness, a long-time friend of appellant's, testified that he, appellant and two other friends had gone to Roosevelt Raceway on the evening of May 29, 1976, and the appellant had won about $1,000 betting on horseraces. This evidence was apparently intended to demonstrate that appellant could afford a Florida vacation without relying on the proceeds of a bank robbery. However, this story was used to greater advantage by the government than by the defense, for it suggested several inconsistencies in the appellant's defense and raised questions which the defense was apparently never able to answer satisfactorily. For example, on cross-examination, the prosecutor asked appellant to specify the various uses to which the alleged $1,000 winnings had been put. Appellant listed a $100 savings deposit, a $200 purchase of traveller's checks, $200 in cash expenses in Florida, the payment of a debt of $100 and the purchase of clothing for perhaps $50. Of the remaining $350, he testified that he had put at least $200 in a metal box at home. He had testified on direct examination that he kept "a lot of money" in this box, and on cross-examination he said that around the time of the robbery it contained about $1,000 in cash. This undermined his testimony that he was a "thrifty" individual who liked to keep his money in a savings account earning interest. It also raised questions about his motives for making a $5.00 deposit in his savings account at another bank on the afternoon of the robbery, while leaving a large amount of cash at home.

Appellant's parents and two sisters also testified. They said it was the custom and habit among members of the household for the last person in at night to lock the doors from the inside with a chain. Appellant had been the last person in the house on the night of June 2nd. Appellant's father had awoken first on the morning of the 3rd, and he had found both the front and rear doors of the house locked. He had also found the door to appellant's room closed, as it generally was when appellant was inside. One of appellant's sisters also said she had seen appellant's door closed, and both sisters said they had not seen him on the morning of June 3rd. Appellant's mother testified that he had emerged from his room between 11:30 and noon.

Appellant testified in his own behalf. He denied robbing the bank, and he said he had slept until almost noon on June 3rd. He testified about his work for the auxiliary police, for the gas station and for political campaigns, and he described his vacation in Florida. He admitted that he had stopped using the bank regularly after the robbery, but he claimed to have visited the bank on two or three occasions after the robbery. First, he said he had gone to the bank on the afternoon of the day of the robbery to make a $5.00 deposit, but he had found the bank's waiting line too long and had instead made the deposit in his savings bank. Second, he said that after his return from Florida he had gone to get change at the bank, perhaps twice, for his former employer at the gas station.

The testimony of Gleason, Criscione and Pyle was squarely inconsistent with that of McGuinness and appellant. The jury, by its verdict, obviously accepted the former and rejected the latter. Most of the other evidence in the case was either inconclusive or open to both incriminating and innocent interpretations. The jury apparently found that the ...


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