United States v. Chibbaro (361 F.2d 365, 1966)

OPINION OF THE COURT

BIGGS, Chief Judge.

I. Facts

An indictment in two counts was returned against the defendants-appellants, Scarbrough and Chibbaro, charging them with violations of 18 U.S.C., Sections 2113(a) and 2113(d), in that they robbed the Citizens First National Bank of Ridgewood, Waldwick Branch, Wald-wick, New Jersey, and put the lives of the employees of the bank in jeopardy while doing so. Both defendants were convicted on both counts of the indictment, were sentenced to terms of imprisonment and have appealed.

On August 19, 1963, at about 6:15 A.M. the bank custodian, Cruz, entered the bank and was accosted by two men, armed with firearms, and later identified as Scarbrough and Chibbaro, who apparently were waiting inside the bank. As six other employees entered the bank that morning they with Cruz were herded into a lavatory and later taken to the basement where they were handcuffed. The two armed men compelling one of the employees, the assistant manager, Smith, to open the vault, robbed the bank of some $83,000 in cash and travellers’ checks. The robbers made good their escape in an automobile believed to be an Oldsmobile parked in a lot near the branch bank with or near a tan station wagon.

The description of what occurred on August 19 varied from witness to witness. It appears, however, that the robbers wore ladies’ dark stockings as hoods, described as “stocking masks”, and rubber gloves and carried a white bag similar to a pillow case in which the fruits of the robbery were placed. One robber was described as rather a “husky” man and the other as rather a “slim” individual. It was testified that the latter talked “incessantly” during the robbery. There is evidence that the robbers also wore hats.

After the robbery an Oldsmobile was discovered and was found to contain several thousand dollars, some money wrappers and some American Express Company travellers’ checks, the last items being identified as having been taken from the branch bank. Many other articles were found in the Oldsmobile, including a “standard” type laundry bag, a glove and a hat which were only identified as items similar to those used or worn by the robbers.

A special agent of the Federal Bureau of Investigation arrived at the branch bank at about 9:15 A.M., approximately an hour after the robbers had fled. There was difficulty in identifying the robbers because of their stocking masks. Special agents of the FBI took statements from all of the bank employees who were present at the robbery and at various times submitted to all of them many photographs of various individuals, some sixty pictures or more, hoping to establish the identity of the robbers. Seemingly no positive identification was possible but apparently six of the sixty photographs, or perhaps six other photographs, were submitted at various times to the employees of the branch bank who were present during the robbery. Some of the employees testified that Scarbrough and Chibbaro looked like the men in two photographs which were among the six. The date on which the six photographs were shown to some of the bank employees was September 27, 1963.

Earnest and vigorous efforts were made by the FBI to effect identification of the robbers. On September 12, 1963, some of the employees of the branch bank who were present during the robbery were taken to a Hudson County, New Jersey, Court where they viewed Scarbrough. Most of the witnesses could not identify Scarbrough positively from this limited viewing.

Special Agent Charles F. Crowley of the FBI testified that he called Scarbrough to the FBI office in Newark on October 18, 1963, for an interview. At the same time some of the employees of the bank who were present during the robbery were taken to the FBI office, where looking through a “one-way mirror”, they observed Scarbrough in an adjacent room. On November 18, 1963, this same procedure was followed in an attempt to identify Chibbaro. As a result of the “one-way mirror” observation some of the bank employees identified the two appellants with some degree of certainty both by appearance and voice.

At the October 18 “one-way mirror” observation of Scarbrough he was questioned by FBI agents but the bank robbery was not discussed. Scarbrough was again called to FBI headquarters for another interview on November 19 and questioned about the instant robbery. However, his actual status at this interview is cloudy. The court inquired of Agent Crowley as to whether or not at that time Scarbrough was under arrest on the charge of robbing the bank. Agent Crowley replied: “I can’t say— Well, he had been identified the day previous.” The agent was then asked: “Did you notify him that he was to be detained on the charge of the robbery of this bank?” Agent Crowley answered: “I notified him that a detainer would be placed against him for his participation in this bank robbery.” The court asked if the detainer had been placed. The agent replied that he did not know whether the detainer had or had not been placed against Scarbrough “at that moment”. Scarbrough had previously testified that he was arrested on November 19, 1963. We will discuss the issues presented by these circumstances at a later point in this opinion.

Chibbaro exercised his right not to take the stand at the trial. Scarbrough testified on his own behalf, stating on direct examination that he did stevedoring work and attended “shape-ups” at the “C-O-Two” plant in Hoboken, as his means of livelihood.

Agent Crowley, over vehement objection, testified for the United States on rebuttal. He stated that when he interviewed Scarbrough on October 18 and asked Scarbrough what was his occupation, the appellant answered: “Let’s not kid each other. You know who I am and what I do. I’m a hold-up man.” Agent Crowley also tesified that when he saw Scarbrough on October 18 there was a scar on his left cheek. Scarbrough’s counsel objected to this testimony as not being proper on rebuttal and moved that the testimony be stricken from the record and for a mistrial. These motions were denied. It should be noted that the Assistant United States Attorney on cross examination of Scarbrough, he having testified previously respecting his interview with the FBI on October 18, had asked him: “Pursuant to a question concerning your employment, did you say, ‘Let’s don’t kid each other. You know who I am and what I do.’ Then he explained that he was a holdup man. [