APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Crim. Nos. 76-119-1/2/4.
Gibbons and Hunter, Circuit Judges, and Layton, District Judge.*fn*
Richard Atkins, Samuel Mason, and Donald Morello, Jr., were convicted of conspiracy and of robbing four New Jersey banks in violation of 18 U.S.C. § 2113. After jury trial in the United States District Court for the District of New Jersey, sentence was imposed. This appeal, alleging numerous trial errors, followed. Because we find reversible error in the exclusion of a hearsay third-party confession to one of the robberies, we order a new trial limited to Counts I, VI, VII, and VIII. In addition, we direct the district court to correct the sentences, in accordance with this opinion.
The ten-count indictment charges Atkins, Mason and Morello with an overall conspiracy (Count I) to violate 18 U.S.C. § 2113 by robbing certain New Jersey banks. The remaining counts concern a robbery of the Trust Company of New Jersey in Jersey City, on December 24, 1974 (Counts II and III); a robbery of the Garden State National Bank in North Bergen, on February 21, 1975 (Counts IV and V); a robbery - which included a murder - of the First National Bank in Paterson, on April 10, 1975 (Counts VI, VII, and VIII); and a robbery of the Provident Savings Bank in Jersey City, on May 2, 1975 (Counts IX and X).
During the trial, a member of the group, one Mastria, was a chief Government witness. Another crucial witness was an undercover agent, Murrow, who wore a tape recorder to one meeting with Atkins where details of the various robberies were discussed. There was clearly sufficient evidence to support the jury's verdict, which was guilty on all counts except that Atkins, not a participant in the Garden State National Bank robbery, was found not guilty on Counts IV and V.
We are concerned, though, about proffered testimony that the trial judge excluded. We will discuss that first, and then the sentences.
During the robbery of the First National Bank, on April 10, 1975, a bank guard, John White, was shot and killed by the robbers. Testimony was that while the robbery was in progress, the guard reached for his gun. The robber stationed in the doorway shot him with a sawed-off shotgun, and the other two shot him on their way out. In the taped conversation with Murrow, Atkins claimed it was he who shot White.
During trial, the attorney for Atkins produced a witness, one Gail Cotton, who was prepared to testify that on the evening of the robbery, she overheard one Kenny Jackson say that he and Larry had robbed a bank that day and had shot John White. The court excluded the proffered testimony as hearsay not within exceptions 803(24) or 804(b)(3) of the Federal Rules of Evidence.
A statement is admissible under Rule 804(b)(3) of the Federal Rules of Evidence if the declarant is unavailable as a witness and it is a
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissable [sic] unless corroborating circumstances clearly indicate the trustworthiness of the statement.
During the offer of Cotton's testimony, out of hearing of the jury, the court said the last sentence of that section was intended to ...