# United States v. Joseph Chrzanowski, in No. 73-1591, and Alex Chrzanowski. Appeal of Alex Chrzanowski, in No. 73-1592

> Court of Appeals for the Third Circuit · August 28, 1974 · 502 F.2d 573

URL: https://www.frixlaw.com/law-library/cases/9460993

## Case

- **Full name:** UNITED STATES of America v. Joseph CHRZANOWSKI, Appellant in No. 73-1591, and Alex Chrzanowski. Appeal of Alex CHRZANOWSKI, in No. 73-1592
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 28, 1974
- **Citations:** 502 F.2d 573; 1974 U.S. App. LEXIS 7054
- **Precedential status:** Published
- **Opinion:** Concurrence by Hunter
- **Judges:** III, Hunter, Rosenn, Hannum
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460993

## How later opinions describe it (automated extraction)

- affirming denial of defendants’ motion for a mistrial when, during deliberations, jurors “may have briefly glimpsed one of the [defendants] being brought into the courtroom in handcuffs”
- describing the purpose of rebuttal evidence

## Opinion text

JAMES HUNTER, III, Circuit Judge
(concurring):
I agree that evidence of other beatings and extortionate loan collections not charged in the indictment could have come in as part of the government’s case in chief under the Circuit’s precedent. Further, under the circumstances present in this case, I believe that its introduction on rebuttal was permissible. However, I cannot endorse the reasoning that leads the majority to this second conclusion.
The majority feels that this evidence was properly admitted as rebuttal for two reasons. First, they feel that it tended to refute the evidence, introduced by the defendants, that gave an account of the incidents leading to the indictments that differed from the government’s account. Second, they believe that this evidence tended to refute the testimony of the defendants’ “character” witnesses.
The majority’s first rationale is, in my opinion, invalid and results in an unfortunate expansion of the scope of rebuttal beyond its proper parameters. Rebuttal evidence is designed to “explain, repel, counteract or disprove the evidence of the adverse party." United States v. Mallis, 467 F.2d 567, 569 (3d Cir. 1972) (emphasis added). In this case, it is true that the defendants’ version of the events in question tended to undercut the government’s theory of the facts, while the rebuttal evidence tended to reinforce the government’s case in chief. However, this fact alone cannot qualify this evidence as rebuttal. Rebuttal cannot merely reinforce the government’s case in chief. It must specifically “explain, repel, counteract, or disprove” the defendants’ evidence. Here, the government’s rebuttal evidence in no way refuted the defendants’ theory of the events that led to their indictment; it merely reemphasized the government’s own theory of these events by showing modus operandi. As a result, I do not think that the evidence of other extortionate loan collections properly qualified as rebuttal to this aspect of the defendants’ casé.
The majority’s conclusion on this point concerns me since its effect is to permit the government to withhold affirmative evidence that , could as easily be a part of its case in chief, secure in the knowledge that it will be able to introduce it later under the guise of rebuttal. This will occur because any evidence that supports the government’s theory of the facts will be admissible as rebuttal the moment the defendant’s evidence begins to vary from the facts as related by the government. Thus, unless the facts are conceded by the defendant, the government will be able to split its ease in chief into two parts and save some of its best evidence until the end *579 of the trial when its impact on the jury-will be greatest. 1
As a result, I believe that this rationale for the majority’s decision permits the use of rebuttal for a purpose it was not designed to serve and gives the government a tactical advantage that will unfairly hamper the right of an accused to defend himself. I do not believe that it is good law.
The majority’s second reason for permitting the introduction of this evidence on rebuttal is to refute the testimony of the defendants’ “character” witnesses. Ordinarily, this rationale would be improper also, since the rule appears to be that evidence of good character can be rebutted by the government’s own reputation evidence, but that it cannot be rebutted by evidence of specific acts of misconduct. Wigmore on Evidence, §§ 58, 53 (1940); see United States v. Michelson, 335 U.S. 469, 477-480 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948); Shimon v. United States, 122 U.S.App.D.C. 152 , 352 F.2d 449 (1965) (Burger, J.).
However, in this case, the defendants’ questioning of their “character” witnesses went beyond mere reputation evidence. At one point witness Lawrence, in response to defendants’ direct questions, stated that he had borrowed money from defendant. Alex Chrzanowski and had later paid it back. By asking these questions, the defense presented testimony that tended to establish that the defendants, in the normal course of their activities, engaged in legitimate loan operations. Thus, it is my view that evidence of earlier incidents of extortionate loan collections could properly come in, on rebuttal, to show the defendants’ true modus operandi but only to refute this specific, nonreputation, testimony.
. Naturally, if the defendant concedes the facts, the government’s statement of them will be fully established by the partial, but unrebutted evidence introduced by the government in its case in chief. Thus, this tactical maneuver can be undertaken by the government without risk.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460993. Public record. Not legal advice.