United States v. Seymour Rosenwasser

HAYS, Circuit Judge:

Seymour Rosenwasser appeals from a judgment of conviction after a jury trial in the United States District Court for the Eastern District of New York (Platt, J.). Rosenwasser was tried jointly with Gerald Allicino on a two-count indictment charging them with unlawful possession of goods stolen from interstate commerce, 18 U.S.C. § 659, and a related conspiracy, 18 U.S.C. § 371. Rosenwasser was acquitted on the conspiracy count, but was convicted of having possessed a quantity of women’s garments which had been stolen from an interstate shipment of freight. He was sentenced to a two-year term of imprisonment and a $5,000 fine.¹

Principally, Rosenwasser contends that it was prejudicial error for the district court to deny his motion for severance and then admit testimony by a government agent concerning a subsequent similar offense committed only by Allicino. This error was compounded, appellant claims, by the court’s refusal to permit cross-examination of the government agent. Because we find that neither the admission of the other crimes evidence nor the denial of cross-examination was erroneous, we affirm.

The government’s main witness was Paul Fleischer, an admitted hijacker and convicted felon. He testified that he participated in the hijacking of a truck owned by Arlene Knitwear Company and the subsequent sale of part of the truck’s contents to Allicino and Rosenwasser. According to Fleischer, the hijackers and Allicino and Rosenwasser agreed that Rosenwasser would buy one-third of the goods and keep the rest of the load at his factory until the hijackers could find a second buyer. Fleischer testified that the goods were left with Rosenwasser for one day, after which the hijackers picked up the load and delivered it to one Broverman. Although there was corroborative testimony that seven boxes of the stolen goods were taken by the F.B.I. from Broverman’s basement after the investigators were led there by Fleischer, the government offered no independent corroboration of Rosenwasser’s involvement. Moreover, none of the stolen goods were ever found in his possession.

The government also called F.B.I. agent Ernest Haridopolos, who testified, over appellant’s objection, that he had arrested Al-licino three weeks after the hijacking for committing a similar act, possession of a stolen interstate shipment of liquor. Hari-dopolos told the jury that he had arrested Allicino after observing him unloading the stolen liquor at the street level floor of 2395 Pacific Street, Brooklyn, which, according to other testimony, was the building in which Rosenwasser rented factory space and in which Allicino’s brother was the elevator operator.

The court cautioned the jury that Harido-polos’ testimony was admissible only against Allicino,² and Judge Platt later repeated this instruction in his charge to the jury.³ Rosenwasser attempted to cross-examine Haridopolos, but was barred from doing so on the ground that Haridopolos’ testimony had not been admitted against him.

Appellant now claims that the admission of the other crimes evidence had a prejudicial “spill-over” effect against him, cf. United States v. De Sapio, 435 F.2d 272, 280 (2d Cir. 1970), because no cautionary instruction could have enabled the jury to consider the evidence solely against Allicino. Cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He therefore concludes that the probative value of the evidence was “outweighed by the danger of unfair prejudice,” Fed.R. Evid. 403, and should have been excluded.

This is a close question, and appellant’s argument is not without merit. Generally, when similar act evidence is admitted in a multiple defendant trial, it is clear that the co-defendant claiming prejudice could not have been involved in the similar offense. In those circumstances, there is little doubt that a cautionary instruction is sufficient to preserve the co-defendant’s right to a fair trial. See, e. g., United States v. Payden, 536 F.2d 541, 543 (2d Cir. 1976); see generally, United States v. Papadakis, 510 F.2d 287, 295 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. De Sapio, supra, at 280.

In this case, however, the evidence admitted against Allicino was not so clearly unrelated to the charges against Rosenwasser. The stolen liquor episode occurred only three weeks after the alleged purchase by Rosenwasser of the hijacked women’s garments; moreover, the liquor was recovered in the same building and on the same floor in which Rosenwasser rented space.⁴ We therefore agree that cases such as United States v. Payden, supra⁵ are not dispositive of this appeal.

Nevertheless, Judge Platt cautioned the jury on three separate occasions that evidence admitted solely against Allicino was not to be considered in deciding Rosenwas-ser’s guilt or innocence. See notes 2 and 3 supra. Under the circumstances of this case, these limiting instructions were sufficiently strong to preclude the jury from utilizing the agent’s testimony to convict Rosenwasser. Thus, it is especially significant that the jury knew that Allicino had access to the Pacific Street building by virtue of his brother’s employment there, and that the stolen whiskey had been recovered from a part of the building not leased by Rosenwasser.⁶ With the full factual presentation before it, the jury was capable of considering Haridopolos’ testimony exclusively against Allicino.⁷ In short, we find that the wide discretion afforded the trial judge in weighing the probative worth of proffered evidence against its potential prejudicial impact, see, e. g., United States v. Montalvo, 271 F.2d 922, 927 (2d Cir. 1959), was not abused in this case. See, also, United States v. Dwyer, 539 F.2d 924, 927 (2d Cir. 1976).

It follows that the district court acted properly in denying appellant the right to cross-examine Haridopolos. The jury would almost certainly have been confused had Judge Platt allowed cross-examination by Rosenwasser after carefully charging that Haridopolos’ testimony was directed only against Allicino. We simply do not agree that cross-examination, with the attendant confusion, would have been more effective than the limiting instructions in aiding the jury to disregard the stolen liquor evidence as against Rosenwasser. In sum, once Judge Platt decided, correctly we think, that Haridopolos was not a witness against Rosenwasser, there was no reason to permit cross-examination. We therefore hold that the district court did not abuse its discretion in denying appellant the right to cross-examine Haridopolos. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Jenkins, 510 F.2d 495, 500 (2d Cir. 1975); United States v. Kahn, 472 F.2d 272, 281 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973).⁸

We have carefully considered appellant’s other arguments and find them to be without merit. Accordingly, the judgment of conviction is affirmed.

1 . Allicino was found guilty of both the possession and the conspiracy charges. His appeal has been voluntarily withdrawn and is therefore not before this court.

2 . .“Ladies and gentlemen, you remember that after the opening statement I cautioned you that a portion of the Government’s evidence would be only admissible against Mr. Alli-cino, and this apparently pertains to that portion of the evidence, and secondly, that it would only be introduced for the purpose of showing knowledge or intent in the commission of the crime charged in the indictment, and for that purpose only. I will give you , instructions on the law in this question in my charge. But, bear in mind this does not go to prove the crime charged in the indictment. It only, if you find the facts with respect to this portion of the case to be established, it only goes in on the question of knowledge and intent. It doesn’t go in as proof to establish the crime charged in the indictment, in and of itself.”

Trial Transcript at 310.

The court had addressed the jury on the same issue just after the government completed the opening statement:

“Now ladies and gentlemen, with respect to that last bit of evidence, the Government said it was going to produce pertaining to the alleged possession, allegedly stolen liquor three weeks after the events described in this indictment, that is being offered on what we call proof of a similar act; or what the Government calls proof of a similar act; and it’s offered solely against the defendant Allicino. It is not being offered against the defendant Rosenwasser and if that evidence is produced it will only be received against defendant Allicino, and and it will only be received for a limited purpose of showing knowledge with intent to commit the crime as to which I’ll give you a further instruction at the conclusion of the case, but when and if that proof comes I’ll give you preliminary instructions on the question; and at the conclusion of the case I’ll give you full instructions.”

Id. at 19-20.

3 . “Now, there was proof in this case which was admitted solely — I should say there was evidence in this case admitted solely against the defendant Allicino, namely the possession of recently stolen liquor, knowing the same to have been stolen sometime shortly after the events alleged in the indictment.

Now, this special instruction, which I.said I would give you on this point reads as follows:

The fact that the defendant, Allicino, may have committed another offense at some time is not any evidence or proof whatever that, at a prior time, the accused committed the offense charged in the indictment, even though both defenses (sic) are of a like nature. Evidence as to an alleged earlier or later offense of a like nature may not therefore be considered by the jury, in determining whether the accused did the act charged in the indictment. Nor may such evidence be considered for any'other purpose whatever, unless the jury first finds that other evidence in the case, standing alone, establishes beyond a reasonable doubt that the accused did the act charged in the indictment, leaving aside only the question of whether he did it knowingly and willfully.

If the jury should find beyond a reasonable doubt from the other evidence in the case that the accused, Allicino, did the acts charged in the indictment, then the jury may consider evidence as to an alleged earlier or later offense of a like nature, in determining the state of mind, knowledge or intent with which the accused did the acts charged in the indictment. And where all the elements of an alleged earlier or later offense of a like nature are established by evidence which is clear and conclusive, the jury may, but is not obliged to, draw the inference and find that in doing the act charged in the indictment, the accused, Allicino, acted willfully, knowingly, and with specific intent, and not because of mistake or accident or other innocent reason.”

4 . Nor are we unmindful of the fact that Rosen-wasser was convicted on the uncorroborated testimony of a convicted felon.

5 . In Payden, we held that defendant had not been prejudiced by the introduction of evidence against his co-defendant Vernon, since the trial court’s charge had properly cautioned the jury not to consider such evidence against Payden. In that case, however, the evidence admitted against Vernon was relevant to a charge which was totally unrelated to the charges against Payden.

6 . Rosenwasser testified that Allicino’s brother Tony was the elevator operator at 2395 Pacific Street, and that his responsibilities included “[taking] care of the building.” Trial Transcript at 404-05. Appellant also testified, in effect, that the liquor had been recovered from an area used commonly by all of the building’s tenants. Compare Trial Transcript at 416-19 with Trial Transcript 311-18.

7 . Indeed, Rosenwasser’s acquittal on the conspiracy charge indicates that the jury adhered to the court’s instructions. Had the jury considered the stolen liquor evidence against Ro-senwasser, such a verdict would be incongruous.

8 . Nor was appellant deprived of his sixth amendment right to confrontation. We decline to accept Rosenwasser’s argument that “if the witness . , . arguably was a witness against him, he should have been allowed to cross-examine.” Appellant’s Brief at 22 (emphasis in original).