"Yes."

The questioning continued in this manner for several minutes, with Phillips barely containing his impatience. The judge, leaning back in his chair, rocking softly, listened without comment. Bill Bonanno also listened, becoming more interested when Notaro reached the year 1964 and Notaro testified that he had been introduced to the Bonannos through a cousin, the late Joseph Notaro. Then, after admitting to the court that his trucking business had delcined in 1968, Peter Notaro told of the trip to Tucson that he had taken with Bill Bonanno in February 1968, adding that as he left New York he had no idea that Bill carried Torrillo's card, that he had never heard of Torrillo at that point, and that he certainly had not-contrary to Torrillo's previous testimony -gone to Torrillo's home with Perrone to procure the credit card. Notaro told the court that he first became aware of the card after Bonanno, who had been driving all day and wanted to rest, asked Notaro to take over for a while, and to use the card which was in the sun visor, "in case you need gas..."

"I object to this as being hearsay," Phillips said.

"Overruled," Judge Mansfield said. "I will allow it."

"Did you see the name on the card at that time?" Sandler asked.

"Yes," Notaro said.

"What was the name on the card?"

"Don Torrillo."

"Did you speak to Mr. Bonanno about that?"

"Yes, yes, I did."

"Objection to what Mr. Bonanno said," Phillips called in a loud voice, "anything Mr. Bonanno said, Your Honor."

"It seems to me that we are getting into an area here of hearsay," the judge agreed.

"I thought I was questioning the man about his criminal intent, Your Honor," Sandler explained.

"Yes," Judge Mansfield said, adding, "I will instruct the jury as follows: I am going to admit this evidence not to prove the truth of what Mr. Bonanno said, but simply to prove the fact that it was said to this witness. I think you ought to grasp the difference there," the judge continued, now turning toward the jury. "It is not being received in evidence to prove that what Mr. Bonanno said was true, because Mr. Bonanno would have to be cross-examined on that. It is being offered simply to prove that it was said to this witness."

"If Your Honor please," Krieger said, standing, seeming almost indignant. "I would like to make an objection at the sidebar. May I?"

"Yes."

With Sandler and Phillips standing next to him at the side of the judge's bench, Krieger said, "If Your Honor please, I have no quarrel with the instruction as given in that it is, in my understanding, a correct statement of the law. But what bothers me here is that it may well be construed as a comment upon the failure of the defendant Bonanno to testify and to expose himself to cross-examination here. I think that my obligation requires me to move for a mistrial under these circ.u.mstances, Your Honor."

"It certainly is not intended as any such comment," Judge Mansfield said. "If you desire in the instructions or at this time an instruction to the effect that the failure of the defendant Bonanno to take the stand does not const.i.tute a basis for any inference or presumption against him, I will give it."

"Well," Krieger said, "I had a.s.sumed, Your Honor, that you would so charge in the main body of your charge. I think, Your Honor, at this time I would request that you instruct this jury now that in their consideration of the charges against Salvatore Bonanno that they are to specifically exclude from their consideration-they are to draw no inference one way or the other as to the fact of his failure to testify and not to construe any of your remarks as a comment on that, etc., without waiving any rights which may have accrued as a result of the original statement."

"I am not going to add that last," said the judge.

"No, I am adding that as far as the record is concerned," Krieger said.

The judge turned to the jury, and said, "Ladies and gentlemen, the defendant Bonanno has rested without taking the witness stand. Under the law he has the right to do that and I think I will instruct you more completely when the time comes. At the present time, however, I give you this statement which will be repeated in my instructions to you. No inference or presumption whatsoever is to be drawn against the defendant Bonanno because of his failure to take the witness stand or to testify in his own defense. He is not required to do that and any comment made by me with respect to an evidentiary question here was not intended to imply that any such inference should be drawn."

With a nod from the judge, Sandler resumed his examination of his client, and Peter Notaro told of his first months in Arizona during which he resided at the elder Bonanno's home, dined often with Bill Bonanno in restaurants where Bill occasionally used the card, and Notaro also described the day that he had accompanied Bill to the Tucson airport and, because Bill could not find a parking place, Notaro had gone to the ticket counter to sign Torrillo's name to a voucher, doing as Bill had asked, and Notaro told the court that he had no idea at that time that he was committing fraud.

Finally, Walter Phillips had his chance to cross-examine Peter Notaro, holding in his left hand a pack of Diners' Club receipts signed in the name of Don Torrillo.

"Are you familiar with the Statler Hilton in Tucson, Arizona?" Phillips asked.

"Yes."

"Have you ever been to the Statler Hilton, have you ever stayed there or had dinner there?"

"I have had dinner there."

"Did you have dinner there with Mr. Bonanno?"

"Yes."

"And at that time was the Don Torrillo credit card used to pay for the dinner?"

"This I don't remember."

"I show you Government Exhibit 14A in evidence," Phillips said, handing a piece of paper to Notaro. "Does that refresh your memory?"

"No, I don't remember how he paid it."

"Are you familiar with the Tucson Desert Inn in Tucson?"

"No, I don't remember it."

"You don't remember the Tucson Desert Inn?" Phillips repeated, seeming surprised.

"No."

"You don't remember ever going there?"

"I can truthfully say no, I don't remember going there."

"I show you Government Exhibit 15 in evidence," Phillips said, handing it to Notaro. "Would you look at that and see if that refreshes your memory at all."

"No," Notaro said, "I don't remember this."

Reverting back to the New York-Tucson trip of February 1968, Phillips asked, "Do you remember if you stayed at the Catalina Motel in Indianapolis, Indiana?"

"No, I don't remember the name of the motel, no."

"I show you Government's Exhibit 17 in evidence. Would you look at that for a minute."

Notaro squinted at the small piece of paper, saying finally, "No, I don't remember the hotel."

"Do you remember eating at a place called the Zeno's Steak House in Rolla, Missouri?"

No, said Notaro.

The Imperial Motel in Las Cruces, New Mexico?

No.

The Airport Travel Lodge in San Diego?

No.

"When you went over to the travel agency [in Tucson] to purchase those tickets from Montreal to Tucson, you went at Mr. Bonanno's direction, is that correct?" Phillips asked.

"He told me if I would do him a favor to go and get them for him."

"And he gave you the Don Torrillo credit card, is that right?"

"He did," said Notaro.

"When you arrived-you went over there with Mr. Pasley, is that right?" Pasley, co-owner of a c.o.c.ktail lounge, was a friend of Bill Bonanno's.

Notaro admitted going with Pasley, saying that it was Pasley who had asked the travel agent, Ruben Serna, for the tickets.

"And Mr. Serna then made a telephone call, did he not?" Phillips asked.

"Yes, he did."

"And while he was on the telephone, did he turn to you and ask you, 'How do you spell your name?' "

"Yes."

"And you pulled out the credit card and you spelled Torrillo?"

"No, sir, I didn't spell it. I showed him the card."

"You showed Mr. Serna the card?"

"That's right."

"Did you hear Mr. Serna testify here that you spelled the name for him?"

"But I didn't spell the name for him," Notaro insisted.

"You have a distinct recollection of that event, is that right?" Phillips asked.

"That's right."

Judge Mansfield turned toward Notaro and asked, for clarification, "When you showed him [Serna] the card, you were indicating that you were Torrillo, isn't that what..."

"He introduced me as Don, Your Honor."

"Well, when you were introduced by Mr. Pasley to Mr. Serna, the travel agent, in March of 1968, you were introduced as Mr. Torrillo, weren't you?" asked the judge.

"Not to him I wasn't," Notaro said. "I was introduced to Ruben [Serna] as Don. Then when he says, 'Which credit card,' that's when I gave him the card and that's when he knew I was Don Torrillo. I was introduced to him as Don and that's all."

"But you understood, did you not," Judge Mansfield asked, "that you were being introduced as the person Torrillo shown on the card, whether or not the word Torrillo was used?"

"Yes, this I know," said Notaro.

"Well now," the judge said, "when that happened, you knew, did you not, that you were not Don Torrillo?"

"Yes," Notaro said, "I knew that."

"Did you turn around and say to Mr. Pasley or anybody, 'Look, I'm not Torrillo'?" asked the judge.

"Mr. Pasley knew that because he knew me," Notaro said.

There was laughter in the court, but Judge Mansfield, unsmiling, continued: "Had you prior to the entry of Mr. Ruben Serna's office discussed this matter with anyone?"

"No," Notaro said, "because there was nothing to fear. The card was good. There was nothing to fear."

29.

THAT AFTERNOON, THE FOURTH DAY OF TESTIMONY, after minor procedural matters had been resolved by the judge, the jury heard the final arguments from Krieger, Sandier, and Phillips.

Krieger, who spoke first, reminded the jury that at the start of the trial he had said that the "credibility of Torrillo will mandate your verdict" and now, at the completion of testimony, Krieger said he would not retreat from that position. If anyone had engaged in fraud in this trial, Krieger said, it was not Bonanno-it was Torrillo, whom he characterized as a deceiver, an exaggerator, and finally a tool of the prosecution. After signing an affidavit that he had lost the credit card, he changed his story, Krieger said, when the detectives began to visit him. "In June of 1968 he is interviewed by the detectives, and then," Krieger said, "I believe we started to see the truth. The light comes out, the candle in the darkness comes out-Torrillo is behind terribly in his bills, he can't pay the acc.u.mulated charges. He is worried. He had a house in his own name which suddenly had gone over into his father's name, and I think that you can draw an inference there that he was seeking to conceal his a.s.sets from creditors such as the various credit card agencies. He knows, because the detectives tell him, 'You are in trouble in this Diners' Club thing. We could arrest you right now. You are in trouble. You are in trouble. You are in trouble.' "

If Bonanno did not think that it was permissible to use Torrillo's card, he would surely have behaved in a more surrept.i.tious manner than he did, Krieger reasoned, and he would not have been so open and casual in displaying the card in his hometown, Tucson, where he was so well known. When the card was confiscated in Bloom's store, Krieger continued, Bonanno had not reacted in a violent manner, he had not run from the store and fled to the hills, which would have been the predictable reaction of a man wishing to conceal what he believed to be a serious crime. Bonanno had paid cash for the merchandise at Bloom's, Krieger reminded the jury, and later one of his Tucson attorneys, Netherton, had called Bloom's seeking without success the return of the card.

The government's perjury charges against Bonanno were also unfounded, Krieger said, being partly based on the issue of whether or not he had discussed the matter of the credit card with his attorneys in Tucson. Quoting from Bonanno's grand jury testimony of October 24, 1968, which Krieger conceded was not sufficiently clear and precise-Bonanno had said: "I may have mentioned it to a few attorneys."-Krieger nonetheless recalled that one of the attorneys, Netherton, had admitted on the witness stand that the question of Bonanno's discussing the card with him "strikes a chord." While Videen denied that the subject had been discussed, a third attorney, Soble, had said, "Yes, there was a discussion about a credit card," cautioning Bonanno on that occasion that "there might be a forgery."

When Sandler stood to deliver his summation, he also focused on the exaggerations, inconsistencies, and the admitted lies in Torrillo's testimony, adding: "He is a kind of a person who pretends to be a big shot when he is not, who pretends to be more important than he is, to have more affluence, more resources, more credit. Such a person met people who seemed to him important, whether they were or not. And he was trying very hard to impress them with how important he was so that he could use them ultimately for his interests. And a time came when his bluff was called, when they said-when Perrone said, 'We are short of cash, we need help, can we use a credit card,' and he says consistent with the image he had presented, 'Of course, I have twenty credit cards. Don't worry about it, we will straighten it out.'

"I suggest to you that he is the kind of person who could have done that. You know he is the kind of person who could have lied about doing that and that there is at least at the beginning a substantial possibility that this is what occurred, that he led them to believe that it was all right with him, the bills would be taken care of. I suggest that, at least that, is a reasonable possibility, perhaps more."

In conclusion, Sandler said: "I have no apologies whatever to offer to Mr. Notaro, none whatever. He's a man who has worked all of his life, and at the age of fifty-six he has a wife whom he's had for twenty years and a young daughter who is going to school, to college in Arizona, and his wife is not ashamed to work as a waitress, and when he buys a house in a new area of this country, a $16,000 house and he puts down a down payment by borrowing against an insurance policy and borrowing money from his daughter's savings account, this is not a man who has to be afraid to look anybody here in the eye. He is a man, he is a decent worthwhile man. He is ten times in decency the man Torrillo is, ten times. I think I am using a very small numeral when I make that kind of comparison.

"We do not ask for sympathy. We do not ask for mercy. We ask for justice. We ask you to do that which you were sworn to do. Apply your experience and your common sense and your feeling for life to what happened in terms of the court's charge. If you do that you will acquit Peter Notaro. Thank you very much."

When it came Phillips's turn to speak he quickly refuted Krieger's contention that the keystone of the government's case was Don A. Torrillo; the government's case rests simply on the crimes that had been committed, Phillips said, specifically the crimes of perjury, conspiracy, and fraudulent use of the mail. Each and every time that Bonanno or Notaro were representing themselves as Torrillo in a restaurant, a motel, or at an airlines counter, they were guilty of fraud, and Phillips refused to accept the notion that Bonanno or Notaro were so naive as to think otherwise. Phillips also dismissed as absurd the defendants' explanation that Torrillo had given his card willingly to Perrone and had agreed to its use by Bonanno.

"Now, ask yourselves," Phillips appealed to the jury, "applying your common sense, would Mr. Torrillo have given permission to Mr. Bonanno, or anybody anybody for that matter, to take five people into Pancho's Steak House and treat them to a meal and pay for it on his credit card? Would Mr. Torrillo have given Mr. Bonanno, or anybody, for that matter, permission to go into Bloom's store, charge up almost two hundred dollars' worth of clothes on his credit card? Does your common sense tell you that Mr. Torrillo would have given Mr. Bonanno, or anybody, for that matter, permission to purchase airline tickets, two parties, first-cla.s.s, one way, San Francisco to John F. Kennedy, to New York? Two parties, first-cla.s.s, Phoenix to New York City? $300. Tucson to New York? $259. And so it goes. Los Angeles, San Francisco-Phoenix, San Francisco-Phoenix? Do you think that Mr. Torrillo would have, in his right mind, given him permission, or anybody permission, to purchase these tickets on his credit card? Does your common sense tell you that Mr. Torrillo would have given Mr. Bonanno, or anybody, permission to charge up almost $2,500 in just over one month on this card? for that matter, to take five people into Pancho's Steak House and treat them to a meal and pay for it on his credit card? Would Mr. Torrillo have given Mr. Bonanno, or anybody, for that matter, permission to go into Bloom's store, charge up almost two hundred dollars' worth of clothes on his credit card? Does your common sense tell you that Mr. Torrillo would have given Mr. Bonanno, or anybody, for that matter, permission to purchase airline tickets, two parties, first-cla.s.s, one way, San Francisco to John F. Kennedy, to New York? Two parties, first-cla.s.s, Phoenix to New York City? $300. Tucson to New York? $259. And so it goes. Los Angeles, San Francisco-Phoenix, San Francisco-Phoenix? Do you think that Mr. Torrillo would have, in his right mind, given him permission, or anybody permission, to purchase these tickets on his credit card? Does your common sense tell you that Mr. Torrillo would have given Mr. Bonanno, or anybody, permission to charge up almost $2,500 in just over one month on this card?

"But let's look at what else we have. The bills weren't paid. Not one single bill that Mr. Bonanno used on this credit card was paid. If Mr. Torrillo had given him permission why wouldn't he at least have paid a bill or two? But this shows you, that fact alone,...that he didn't give him permission."

Recalling Torrillo's admitted fear of Hank Perrone, Torrillo's having seen Perrone carrying a gun and also hitting an elderly man in a barbershop, Phillips asked the jury to put itself in Torrillo's place on the evening in January 1968 when Perrone had come to Torrillo's home and a.s.serted his need for the card. "What would you have done under those circ.u.mstances?" Phillips asked. "Would you have denied him the credit card? I hardly think so. I think your common sense tells you go get the credit card and you give it to him."