United States v. Anthony Polisi and Salvatore Polisi

416 F.2d 573, 1969 U.S. App. LEXIS 10656

• Court: Court of Appeals for the Second Circuit
• Decided: September 25, 1969
• Docket: 260, 261, Dockets 32877, 32878
• Status: Published

Opinions

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York, entered April 8, 1968, Walter Bruchhausen, Judge, denying the motion of appellants Anthony and Salvatore Polisi for a new trial on the grounds of newly discovered evidence, Rule 33, Fed.R.Crim.Proc. We find error as to appellant Anthony Polisi and reverse for a new trial. We find no error as to Salvatore Polisi, and as to him affirm the order.

On October 8, 1965 an indictment was filed in the District Court charging the appellants and four others — Cordero, Smith, Parks and Zaher — with the July 7, 1965 armed robbery of the Central Queens Savings and Loan Association, and with conspiracy to effectuate this robbery and that of the Queens County Federal Savings and Loan Association on July 30, 1965. On January 10, 1966, the first day of trial, the four additionally mentioned defendants withdrew their prior not guilty pleas, and entered pleas of guilty. In the ensuing trial, the government’s case against the Polisis relied upon the testimony of three of the four confessed participants, Smith, Parks and Zaher, who described Anthony Polisi as the mastermind of a nationwide bank robbery business. Cordero was not called as a witness against the Polisis, although he was available. On January 26, 1966, a jury found Anthony Polisi guilty of the Central Queens robbery count, and found both appellants guilty of the conspiracy counts. Anthony and Salvatore Polisi were sentenced to fifteen and three year terms respectively.

The newly discovered evidence alleged in the instant case arises from a subsequent trial and conviction, which will be referred to as the Franzese trial, upon an indictment in the Eastern District of New York charging Anthony Polisi, and Cordero, Smith and Parks, together with six others (Franzese, Potere, Florio, Messineo, Matera and Crabbe), for the robbery of the Queens County Federal Savings and Loan Association on July 30, 1965 (for which the Polisis had already been convicted of conspiracy to rob), and the robbery of the United Savings and Loan Association on August 13, 1965. Appellant Salvatore Polisi was not named in these counts. At the Franzese trial, Smith, Parks, Cordero and Zaher again pleaded guilty and all testified for the government, this time, however, relegating the appellant Anthony Polisi to a relatively minor role in their description

of the bank robbery operation; and instead testifying that the leadership belonged to Franzese, Potere and Florio:

The Government’s case against them rested almost entirely on the testimony of four confessed participants — Smith, Parks, Cordero and Zaher — who cast defendants in the role of behind-the-scenes operators of a nationwide bank robbery business. Franzese was the general manager; Potere was the procurer and explieator of plans of the banks and took general charge of logistics; Florio assisted in these operations; * * *.

What is more troubling is that three of the Government witnesses — Smith, Parks and Zaher — had previously depicted Anthony Polisi, owner of the Aqueduct Motor Inn in Queens, as the master-mind of the same enterprise and had so testified in a trial in January, 1966, wherein Anthony and his son Salvatore were convicted, in contrast to the testimony of Smith, Parks and Cordero at the instant trial that Anthony’s services after mid-July, 1965, were in storing weapons and furnishing a meeting place. This was substantially what Cordero, who had not been called, as a witness against the Polisis, had said in statements to the FBI shortly after his arrest on September 30, 1965. United States v. Franzese, 392 F.2d 954, at 957. [emphasis added]

On appeal from the convictions in the Franzese case, this discrepancy between the testimony of Smith and Parks at the Polisi and Franzese trials was raised, on the issue of the extent to which the government was allowed to rehabilitate its witnesses after attempted impeachment based on their failure to mention the Franzese trial defendants in their testimony at the Polisi trial. In United States v. Franzese, 392 F.2d 954, 957 (2 Cir. 1968), we stated:

In fact the inconsistency was not quite so great as the appellants argue. * * The quartet, dissatisfied with Anthony Polisi’s management, were summoned to a meeting at the Aqueduct Motor Inn on an evening in late July, 1965, attended by all five appellants. [Franzese, Crabbe, Matera, Potere and Florio] Franzese announced that he was taking over, on a 50-50 basis, and that work orders would be issued by his four associates from time to time. The testimony at the Polisi trial as to the robberies of July 7 and 13, both antedating a meeting * * * where Franzese is alleged to have taken over, is consistent with the story told by the Government’s witnesses in this case; the conflict comes with the robbery of the Queens County Federal Savings & Loan Ass’n on July 30. This court affirmed the Polisis’ conviction from the bench in November, 1966; the Government did not disclose its new information as to, Anthony’s less significant role in the Queens County Savings & Loan robbery, [emphasis added]

We further noted that in their Franzese grand jury and trial testimony, Smith, Cordero and Parks testified that their failure to mention the Franzese defendants at the Polisi trial was due to fear for their lives, safety and families if they informed. 392 F.2d 957-958.

Appellants argue that the shifting testimony of the four accomplices was in fact due to the government’s promising special consideration which, combined with their fear of the Franzese defendants, led them to perjure themselves. In addition, appellants maintain that their conviction was also based upon the government’s misconduct in suppressing or failing to disclose the favorable statements by Cordero indicating the complicity of Franzese and the minor role played by Anthony Polisi. In support of this “conspiracy” theory, appellants rely upon admissions by Smith and Parks that they agreed with Cordero to omit Cordero’s name as a participant in the robbery of the Mount Holyoke National Bank, and instead state that Salvatore Polisi went into the bank when in fact he waited outside in the “get away” car. They also rely upon a statement by Zaher that to his knowledge on October 11, 1965, Franzese had been the “boss” of the bank robberies on July 7 and 13, 1965.

The District Court rejected appellants’ arguments and denied their motion for a new trial, stating that the standards established by the court in United States v. Lombardozzi, 236 F.Supp. 957 (E.D.N.Y.1964), aff’d 343 F.2d 127 (2 Cir. 1965) were not satisfied:

The Court * * * is firmly convinced that the testimony of Cordero would only tend to impeach his own credibility and the credibility of the three named accomplices. Furthermore, the evidence produced during the trial of the defendants overwhelmingly supported the verdicts. His testimony, if called as a witness, probably would not have produced a different verdict. It would merely be cumulative.

Furthermore, the motion must fail under the Larrison test, recited in the Lombardozzi case, supra, for the reason that the Court is not satisfied that the testimony of the accomplices was false in its material aspects and, to repeat, the evidence overwhelmingly established the guilt of the defendants.

I.

The scope of review of the denial of a motion for a new trial based on newly discovered evidence is narrow. Once the trial court has made a factual determination — as to whether there has been suppression or perjury, for example — the appellate court may not intervene except “when the findings of fact are wholly unsupported by evidence; * * * it should never do so where it does not clearly appear that the findings are not supported by any evidence.” United States v. Johnson, 327 U.S. 106, 111-112, 66 S.Ct. 464, 466, 90 L.Ed. 562 (1946).

II.

The generally held essentials for a new trial based on newly discovered evidence are the following: (1) the evidence must have been discovered since the trial; (2) it must be material to the factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2 Cir.), cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958).

Where the conviction is shown to be based even in part upon perjured testimony, however, a court will not stop to inquire as to the precise effect of the perjury, but will order a new trial if without the perjury the jury might not have convicted. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Larrison v. United States, 24 F.2d 82 (7 Cir. 1928).

Similarly, the general rule does not apply where the prosecutor has suppressed evidence exculpatory of or otherwise favorable to the accused. The prosecutor has a duty not to use evidence known to be false, even if he did not instigate the perjury, and even if the evidence is relevant to punishment rather than guilt. Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). A prosecutor’s failure to disclose evidence whose high value to the defense could not have escaped him requires a new trial, even where the perjury concerns only the credibility of the witness and not the facts at issue. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2 Cir. 1964). Similarly “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. State of Maryland, 373 U.S. 83, 87, 83 S..Ct. 1194, 1196, 10 L.Ed.2d 215 (1963).

A new trial is required where the prosecutor’s failure to disclose was a considered decision for the sake of obstruction, or where the value of the evidence to the accused could not have escaped him. Where the non-disclosure is passive, i. e., not deliberate in the above senses, the courts have sometimes modified the criteria for a new trial, and instead looked to the defendant’s harm, i. e., prejudice. The earlier decisions of this court have reasoned that where what is at stake is not deterrence of conduct detrimental to the integrity of the judicial system, the strong policy underlying the desired finality of judgments comes into play and requires a substantially higher probability that disclosure of the evidence to the defense would have altered the result. In Kyle v. United States, 297 F.2d 507 (2 Cir. 1961), we measured defendant’s prejudice by how much the suppressed evidence would have affected the jury’s verdict. Absent misbehavior by the prosecutor, or similar violation of the basic concepts of fair play, Kyle would require a showing that the suppressed evidence “would probably produce a different verdict.” Id. at 514. Subsequent to Kyle, the Supreme Court indicated that a different standard should be applied. In Brady v. Maryland, supra, the Supreme Court gave a new direction to the suppression cases by looking to the interest of the defendant, rather than the prosecutor’s motive, stressing that the accused’s facilities to gather evidence are usually meager in comparison to those of the state. When the prosecutor aggravates defendant’s lack of ability to obtain evidence by not revealing to him material evidence the Constitution is violated.

The importance of Brady, then, is its holding that the concept out of which the constitutional dimension arises in these cases, is prejudice to the defendant measured by the effect of the suppression upon defendant’s preparation for trial, rather than its effect upon the jury’s verdict. See Note, The Prosecutor’s Constitutional Duty to Reveal Evidence to the Defendant, 74 Yale L.J. 136 (1964). Following this rationale, we said in United States v. Tomaiolo, 378 F.2d 26, 28 (2 Cir. 1967), that the suppression of evidence lacking in probative force because of its speculative quality did not warrant a new trial. In order to violate the defendant’s constitutional right to evidence necessary to the preparation of his defense, “[t]he evidence must also be shown to be material and of some substantial use to the defendant.” [emphasis added]

We now turn to the application of the above criteria to the instant case. The District Court found that the accomplices’ testimony was not “false in its material aspects,” and that the evidence “overwhelmingly established the guilt of the accused,” citing Larrison v. United States, supra. Apparently this finding means (1) that there was no perjury by a material witness established to the court’s satisfaction, and (2) that even without the allegedly false testimony, the jury would not have reached a different verdict. These findings are supported by some evidence. The alleged conflict in the testimony of the accomplices arises out of the change of leadership of the bank-robbery organization from Anthony Polisi to Franzese in mid-July 1965; however, this finding does not directly or necessarily contradict the jury’s finding that Polisi actively conspired to effectuate the July 30 Queens County Savings and Loan Ass’n. robbery, albeit with a less significant role. United States v. Johnson, supra.

The District Court’s findings are inadequate, however, with respect to the suppression issue raised by appellants. As indicated above, the court found that the testimony of Cordero “would only tend to impeach his own credibility and the credibility of the three named accomplices,” would be only cumulative and “probably would not have produced a different verdict.” This reasoning ignores the Supreme Court’s holding in Napue, supra, that a prosecutor’s failure to disclose evidence of obvious value to the accused requires a new trial, even where the perjury concerned only the credibility of the witnesses. While the statements given by Cordero did not conclusively establish any perjury by Smith, Parks, and Zaher, it is clear that there was a definite conflict in the versions of the role played by Anthony Polisi in the robbery operations. A new trial is required even though Cordero’s testimony “probably” would not have produced a different verdict, Mesarosh v. United States, supra, even though the testimony is perhaps more relevant to punishment than guilt, and even though the testimony’s primary effect would only be to impeach the credibility of the accomplices, Alcorta v. Texas, supra.

Moreover, the same conclusion would result even assuming that, at the time of trial, the government could well have legitimately concluded that Cordero’s testimony was merely cumulative. Under Brady v. Maryland, we must look to the prejudice to the accused of the suppression, in its effect upon his preparation for trial. It is clear, even under the standard indicated by this court in United States v. Tomaiolo, supra, that the evidence suppressed was material and of substantive use to Anthony Polisi. At the Polisi trial, Anthony Polisi was made to appear the mastermind of the series of robberies. Franzese was not mentioned by the accomplices, who subsequently testified that they feared for their lives and safety to implicate Franzese. At the Franzese trial, based upon an indictment returned three months after the verdict in the Polisi trial, the same accomplices testified that Franzese was the mastermind of the bank-robbery operations. While it is true that the government was permitted to rehabilitate these witnesses at the Franzese trial by introducing their testimony that a change of leadership in the robbery operations occurred in mid-July 1965, this evidence only went to the guilt or punishability of Franzese. Anthony Polisi never had the opportunity to use the differing version of Cordero to raise the issue of the credibility of the accomplices, nor to question the whole fabric of the change of leadership story.

Both versions made Anthony Polisi a participant in the robbery scheme, one as the leader, the other as a relatively minor accomplice. But the fact that the two versions differed so drastically might well cast doubt upon the truth of either or both. It may be noted that the Polisi trial testimony not only made Anthony the leading figure in the July robberies in New York State, but in Smith’s version, R. p. 439, had him setting up the subsequent more successful Salt Lake City bank robbery. While there was some corroboration in the testimony of Miss Parks that Anthony Polisi gave her $200 after Parks’ arrest, and in Polisi’s departing from usual registration methods when some of the robbers stayed at his motel, the crucial witnesses tying Anthony to the robberies were the three robbers. Defense counsel’s only hope was to discredit their testimony, and without Cordero’s statements he could point only to minor discrepancies. Moreover, government counsel on argument strongly implied that Cordero’s testimony if given would have coincided with that of Smith, Parks and Zaher. He explained the finding of the indictment by the grand jury prior to the dates of the statements of Parks, Smith and Zaher by stating that he had another witness before the grand jury, Cordero. We think that the command of Brady v. Maryland, supra, required that the prosecutor make known to the defense the conflicting statements of Cordero as to Anthony’s participation in the crime.

Moreover, while both versions support a conviction of Anthony, the discrepancy between the sentence of 3 years in the case of Salvatore, an active holdup participant, and 15 years in the case of Anthony, makes the extent of Anthony’s participation appear crucial on the question of sentencing.

The above considerations in no way affect the District Court’s decision with regard to appellant Salvatore Polisi, since the possible perjury and suppression in question is, not relevant or material to his guilt or sentencing.

m.

Appellants further argue that they were denied their right to confrontation of Cordero who, due to his claimed conspiracy with the witnesses who testified in the Polisi trial, was in effect a witness against them, citing Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

The right does not come into play where there is an absence of testimony by a potential witness. In Parker the errant bailiff was in effect a witness before the trial jury, outside the courtroom. The Sixth Amendment safeguards the right of cross-examination, but it does not require the calling of any particular witness. Curtis v. Rives, 75 U.S.App.D.C. 66, 123 F.2d 936 (1941); Eberhart v. United States, 262 F.2d 421 (9 Cir. 1958).

Order denying new trial affirmed as to appellant Salvatore Polisi, reversed as to appellant Anthony Polisi. New trial granted as to appellant Anthony Polisi only.