Petition — Rosenwasser v. United States

Ix THE

Supreme Court of the United States

Oocroser Team, 1976

No. 76-1627

SurMoun RosenwasseEs,

Petitioner,

—against—

Tue Unrrep Srares or Auto.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Geratp L. SHAB.

1290 Avenue of the Americas

New York, New York 10019

Counsel for Petitioner

Fiscuetti & SHAaRGEL

Of Counsel

May 20th, 1977

TABLE OF CONTENTS

Opinions Below

Jurisdicti

Questions Presented

Constitutional and Statutory Provisions Involved

Statement of the Case —

Reasons for Granting the Writ

Conclusion

APPENDIX

Judgment of the United States Court of Appeals

for the Second Circuit

Judgment of the United States Court of Appeals

for the Second Circuit Denying Petition for Re-

hearing

Judgment of the United States Court of Appeals

for the Second Circuit Denying Petition for

Hearing In Banc

Avuruorities CITED

Al

Al

Bruton v. United States, 381 U.S. 123 (1968) 6, 6n, 8

Davis v. Alaska, 415 U.S. 308 (1974)

Douglas v. Alabama, 380 U.S. 415, 418 (1965)

United States v. Papadakis, 510 F.2d 287, 294 (2nd

Cir., 1975)

STaTUTES

Rule 404(b), Federal Rules of Evidence

Rule 611(b), Federal Rules of Evidence

Title 28, United States Code, Section 12541)

Title 18, United States Code, Section 659

Unitep States Coxsrrruriox

Amendment VI

PAGE

ew re ee

- —— —

In THE

Supreme Court of the United States

Ocroser Term, 1976

No.

—

Seymour RosenwasseEr,

Petitioner,

--against—

Tur Unrrep States or Aurica.

—_

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner Seymour Rosenwasser prays that a writ

of certiorari issue to review the judgment and opinion

entered on February 24th, 1977 by the United States Court

of Appeals for the Second Circuit in the proceedings en-

titled United States of America, appellee v. Seymour

Rosenwasser, appellant, Docket No. 76-1260.

Opinions Below

The opinion of the United States Court of Appeals for

the Second Circuit is reported at —— F.2d —— (2nd Cir.,

February 24th, 1977) and appears in the Appendix, p. A-1.

Jurisdiction

The judgment of the Court of Appeals was entered on

February 24, 1977. A timely petition for rehearing was

denied on April 22nd, 1977. The jurisdiction of this Court

is invoked under Title 28, United States Code, Section

1254(1).

Questions Presented

1. Can the government in a criminal case be allowed

to introduce evidence against one defendant which would

tend to implicate another defendant against whom that

evidence is inadmissible and the co-defendant is denied the

opportunity to cross-examine the witness whose testimony

furnished this evidence?

2. Can cautionary instructions cure the prejudicial spill-

over described in the above-stated situation?

Constitutional and Statutory Provisions Involved

The Sixth Amendment of the United States Constitution

states as follows:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.”

ee —

Rule 404(b) of the Federal Rules of Evidence states as

follows:

“(b) Other crimes, wrongs, or acts. Evidence of other

crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted

in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, iden-

tity, or absence of mistake or accident.”

Rule 611(b) of the Federal Rules of Evidence states as

follows:

“(b) Scope of cross-examination. Cross-examination

should be limited to the subject matter of the direct

examination and matters affecting the credibility of

the witness. The court may, in the exercise of discre-

tion, permit inquiry into additional matters as if on

direct examination.”

Statement of the Case

Petitioner Seymour Rosenwasser was convicted in the

United States District Court for the Eastern District of

New York of one count of violating Title 18, United States

Code, Section 659. This 1976 conviction was based upon

a finding after trial to jury that Rosenwasser had been the

recipient of a stolen interstate shipment of ladies’ gar-

ments.

Petitioner was indicted and tried with a co-defendant,

one Gerald Allicino, who allegedly served as an intermed-

iary between Rosenwasser and the actual thieves who, ac-

4

cording to the government’s principal witness, described

himself as Rosenwasser’s partner. (T. 99)“

The case against Rosenwasser was a thin one. It rested

on the uncorroborated testimony of a convicted felon, one

Paul Fleischer. As can be seen from the Circuit Court's

review of the evidence, the jury’s task was not an easy one

and the question of guilt or innocence was close.

Proof at trial established that Rosenwasser was the

proprietor of a small garment factory located on one floor

of a commercial building in Brooklyn, New York. Taken

in the light most favorable to the government, the proof

showed that on March 6th, 1972, the hijacker-witness Flei-

scher and four of his companions brought the stolen goods

to Rosenwasser’s loft. According to Fleischer, Rosenwas-

ser at first balked but ultimately agreed to purchase one-

third of the stolen load. (T 101-102) Rosenwasser, testify-

ing in his own behalf, denied ever meeting Paul Fleischer,

let alone having bought stolen goods from him. (A 53-54)

In the government’s direct case, Fleischer gave a detailed

description of the loft in which the stolen goods were

placed. (T 93-98) Rosenwasser’s description of the prem-

ises, on the other hand, contradicted the description fur-

nished by Fleischer. (A 55-62) Four of Rosenwasser’s

employees, who worked for him in May of 1972, testified

that they never observed an incident such as that described

by Fleischer. (T 348-352, 358-363, 373-377, 378-383) It was

then stipulated that if “approximately another fifteen or

twenty employees” of the factory were called, they would

testify in a similar manner. (T 390)

The government’s strongest weapon in this otherwise

weak case dealt with proof that co-defendant Allicino

„ The letter T“ refers to the trial transcript, while the letter

“A” refers to A oo Sere Se & Se Cae Ste

Court of Appeals the Second Cireuit.

committed another similar act which was to be admitted

against him. Federal Rules of Evidence, Rule 404(b);

United States \. Papadakis, 510 F.2d 287, 294 (2nd Cir.,

1975). Rather than simply prove that Allicino had pleaded

guilty to another similar offense involving an interstate

shipment of liquor, the government called an F. B. I. agent,

Ernest Haridopolos, who described the circumstances of

this stolen liquor transaction. Haridopolos testified that

this stolen liquor was found in the same building wbere

Rosenwasser’s business was located although not in the

space leased by Rosenwasser. (A 35-37) In fact, Rosen-

wasser was not Allicino’s only connection with this build-

ing. Allicino’s brother, testimony disclosed, was the ele-

vator operator at the building.

Prior to trial, counsel for petitioner Rosenwasser re-

quested that there be a severance or, alternatively, that

the proof of the stolen liquor transaction be excluded. (A

9) Instead, the trial court gave a limiting instruction on

two occasions which cautioned the jury not to consider the

stolen liquor transaction when deciding the case against

Rosenwasser. (T 19-20, 310)

This problem was compounded by the fact that peti-

tioner’s trial counsel was not permitted to cross-examine

Agent Haridopolos because, according to the court and

government counsel, Haridopolos was not a witness against

Rosenwasser. (A 43-44)

The Circuit Court of Appeals, in affirming this convic-

tion over the dissent of Judge Gurfein, found that although

the appeal presented a “close question, and appellant’s

argument is not without merit,” slop. at 1977, the district

court’s cautionary instructions were sufficient and that

since Haridopolos was “not a witness against Rosenwasser,

there was no reason to permit cross-examination.” Slop.

at 1979.

To adopt Judge Gurfein’s last substantive statement in

his dissenting opinion, “This case is only a variation of

the Bruton problem.” Sl. op. at 1990. As with Evans’ con-

fession in Bruton,* Allicino’s “other similar act” became,

it is submitted, one of the most crucial pieces of evidence

against his co-defendant. With all due respect to the ma-

jority opinion in the court below, there can be no question

but that the stolen liquor transaction was used against

Rosenwasser. In his opening statement to the jury, the

prosecuting attorney, when previewing the case, promised

to prove that some three weeks after the violation charged

in the indictment, Allicino was in possession of stolen liquor

at “exactly the same address, exactly the same location in

exactly the same building through exactly the same door-

way as the stolen sweaters and that’s Mr. Rosenwasser’s

building, and if that’s not exactly hold me to it.” (T 19)

As Judge Gurfein stated in his dissenting opinion:

“At this juncture no instruction could keep the jury

from being suspicious without proof, the very evil

— ae ep

And, as noted, when counsel sought to extricate his client

from the umbrella of this transaction, he was denied the

opportunity to cross-examine. As Judge Gurfein stated:

“Agent Haridopolos’ testimony clearly implicated Ro-

senwasser. Notwithstanding the precautionary in-

structions, therefore, Haridolopos ought properly to

be considered a witness ‘against’ Rosenwasser for con-

frontation purposes.”

* Bruton v. United States, 391 U.S. 123 (1968).

7

The dissenter then suggested that petitioner had been de-

prived of his constitutional right of confrontation. Sl. op.

at 1987; Davis v. Alaska, 415 U.S. 308 (1974); Douglas v.

Alabama, 380 U.S. 415, 418 (1965).

Lest there be any doubt about the lay jury’s inability to

separate the stolen liquor transaction from consideration

of Rosenwasser’s case, one need only turn to a rather

remarkable episode which occurred after sentencirg. For

his participation in this offense, Rosenwasser, a 57-year-

old man who had never previously been convicted of a

crime, was sentenced to a two-year term of imprisonment.

Following sentence, petitioner’s wife wrote a letter to the

trial court asking why such a harsh sentence had been

imposed. This letter was apparently referred by the judge

to the United States Department of Probation which at-

tempted to provide the rationale for the imposition of the

prison term.“ Most worthy of note is the letters’ third

paragraph which reads:

“With respect to Allicino, a six-month sentence was

imposed which he will have to serve in full. This sen-

tence was decided upon by the court because Allicino

has already served a four-month sentence on a similar

offense committed at just about the same time tuat he

acted as middleman in the offense involving your hus-

band. When Allicino was arrested on the other offense,

he was unloading stolen cases of whisky at your hus-

band’s place of business. No charges were placed

against your husband for that offense.” (A 201; em-

phasis supplied)

As Judge Gurfein stated:

“If a trained chief probation office believed appellant

to be guilty of the similar offense, what of a lay jury?

* The letter is reproduced in the Appendix filed in the Second

Circuit Court of Appeals at p. 201.

Analogy is strong to the constitutional vice found in-

curable by cautionary instructions in Bruton v. United

States, 391 U.S. 123 (1968).”

The result, therefore, is that the Circuit Court’s judgment

is markedly inconsistent with the principles established by

this Court in the Bruton case. This is not a situation which

is unlikely to recur. As Judge Gurfein concluded :

“I predict with unhappy confidence that the majority

opinion will be cited in all manner of circumstances

as establishing that anything goes so far as multiple

defendant trials are concerned.” Sl.op. at 1989-90.

In view of the ominous forecast, this case is well-suited

for review by this Court.

CONCLUSION

For these reasons, a writ of certiorari should issne to

review the judgment of the Second Circuit Court of Ap-

peals.

Respectfully submitted,

Genatp L. SANT.

1290 Avenue of the Americas

New York, New York 10019

Counsel for Petitioner

May 20th, 1977

APPENDIX

Judgment of the United States Cour: of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHe Seconp Cincvit

No. 205—September Term, 1976.

(Argued September 21,1976 Decided February 24, 1977.)

Docket No. 76-1260

— ——

Unrrep States or AMERICA,

Appellee,

——

Seymour Rosen Wasser,

Appellant.

Before:

Hays, Timpers and Gurren,

Circuit Judges.

—

Appeal from a judgment of conviction in the United

States District Court for the Eastern District of New

York (Platt, J.), for unlawful possession of goods stolen

from an interstate shipment, 18 U.S.C. § 659.

Affirmed.

—

Geratp L. SNARGRL., Esq., New York, N.Y. (La

Rossa, Shargel & Fischetti, New York, N. V.,

of counsel), for Appellant.

Strantey A. Terrier, Assistant United States

Attorney, Eastern District of New York

(David G. Trager, United States Attorney

A-l

A-2

for the Eastern District of New York, of

counsel), for Appellee.

Hays, Circuit Judge:

Seymour Rosenwasser appeals from a judgment of con-

viction 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 posses-

sion of goods stolen from interstate commerce, 18 U.S.C.

§ 659, and a related conspiracy, 18 U.S.C. § 371. Rosen-

wasser was acquitted on the conspiracy count, but was

convicted of having possessed a quantity of women’s gar-

ments which had been stolen from an interstate shipment

of freight. He was sentenced to a two-year term of im-

prizonment and a $5,000 fine.“

Principally, Rosenwasser contends that it was preju-

dicial 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

Allicins. This error was compounded, appellant claims, by

the court’s refusal to permit cross-examination of the gov-

ernment agent. Because we find that neither the admission

of the other crimes evidence nor the denial of cross-exami-

nation was erronous, we affirm.

The goverument'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'n contents to Allicino and Rosenwasser. According

to Fleischer, the hijackers and Allicino and Rosenwasser

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.

A-3

agreed that Rosenwasser would buy one-third of the goods

and keep the rest of the load at his factory until the hi-

jackers 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 testi-

mony that seven boxes of the stolen goods were taken by

the F.B.I. from Broverman’s basement after the investi-

gators were led there by Fleischer, the government offered

no independent corroboration of Rosenwasser’s involve-

ment. Moreover, none of the stolen goods were ever found

in his possession.

The government also called F. B. I. agent Ernest Hari-

dopolos, who testified, over appellant’s objection, that he

had arrested Allicino three weeks after the hijacking for

committing a similar act, possession of a stolen interstate

shipment of liquor. Haridopolos told the jury that he had

arrested Allicino after observing him unloading the stolen

liquor at the street level floor of 2395 Pacific Street, Brook-

lyn, 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 Haridopolos’ testi-

mony was admissible only against Allicino,’ and Judge

2 “Ladies and gentlemen, you remember that after the opening state-

ment I cautioned you that a portion of the Government's evidence

would be only admissible against Mr. Allicino, and this apparently

pertains to that portion of the evidence, and secondly, that it would

A-4

Piatt later repeated this instruction in his charge to the

jury. Rosenwasser attempted to cross-examine Harido-

go in as proof to establish the crime charged u the indictment, in

and of itself.”

Trial Transeript at 310.

The court bad 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 evi.

dence, 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 eall proof of a similar act; or what the Government calls 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 evi-

dence is produced it will only be received against defendant Allicino,

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 st the conclusion of the case I'll give you full in-

structions.”

Id. at 19-20.

3 “Now, there was proof in this case which was admitted solely

| 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 in

dietment. 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 te 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 reasonable doubt that the aceused did the act

charged in the indictment, leaving aside only the question of whe her

he did it knowingly and willfully.

If the jury should find beyond a reasonable doubt from the other

evidence in the ease that the accused. Allicino, did the acts charged

A-5

polos, 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 (1968).

He therefore concludes that the probative value of the

evidence was “outweighed by the danger of unfair prej-

udice,” 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 suffi-

cient 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. Papadvkis, 510

F. 2d 287, 295 (2d Cir.), cert. denied, 421 U.S. 950 (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

5

F

gs

indictment, then the jury may consider evidence us to an al

ier or later offense of a like nature, in determining the

mind, knowledge or intent with which the accused did the

in the indictment. And where all the elements of an

offense of a like nature are established by

clear and conclusive, the jury may, but is not

draw the inference and find that in doing the act

the indictment, the accused, Allicino, acted willfully,

knowingly, and with specific intent, and not because of mistake or

1

0

1

A-

the hijacked women’s garments; moreover, the liquor was

recovered in the same building and on the same floor in

which Rosenwasser rented space.‘ We therefore agree

that cases such as United States v. Payden, supra,“ are

not dispositive of this appeal.

Nevertheless, Judge Platt cautioned the jury on three

separate occasicns that evidence admitted solely against

Allicino was not to be considered in deciding Rosenwasser’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.“ With the full factual presentation before

it, the jury was capable of considering Haridopolos’

testimony exclusively against Allicino.’ In short, we find

4 Nor are we unmindful of the fact that Rosenwasser was convicted om

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 evi

dence 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 T ay was the elevator

operator at 2395 Pacific Street, and that hi- responsibilities ‘scluded

[taking] care of the building.” Trial Transcript at 404.0 »ein.

also testified, in effect, that the liquor had hecu *vcovered from en

used commonly by all of the buildings an'. Compare Tria. Tran

script at 416-19 with Trial Transeript 311-18.

7 Indeed, Rosen wasser '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 Rosenwasser, such a verdict would be

incongruous.

2 2

A-7

that the wide discretion afforded the trial judge in weigh-

ing the probative worth of proffered evidence against its

potential prejudicial impact, see, ¢.g., United States ».

Montalvo, 271 F.2d 922, 927 (2d Cir. 1959), was not abused

in this case. See, also, United States v. Dwyer, Nos. 76-

1108, 76-1254, slip op. 5091, 5096 (2d Cir. July 26, 1976).

It follows that the district court acted properly in deny-

ing 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 di

rected 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 (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 (1973).

We have carefully considered appellant’s other argu-

ments and find them to be without merit. Accordingly, the

ju ent of conviction is affirmed.

A-8

Gurren, Circuit Judge, dissenting:

I respectfully dissent.

This is a case involving several unusual elements. There

was no independent corroboration of the delivery of the

goods to appellant Rosenwasser four years earlier. Nor

were any of the stolen goods found in his possession. The

conviction rested solely on the testimony of one of the

hijackers, Paul Fleischer.

According to his testimony, Allicino, the co-defendant,

agreed to purchase the entire load. Arrangements were

made to deliver the stolen goods te Allicino the following

Monday morning, March 6, at a factory building on Pacific

Street in Brooklyn, a building with several tenants. On

that date, Fleischer met with five of the confederates, and

all six went to a building at 2395 Pacifie Street where they

met with Allicino and his brother, the elevator oporator

for the building.’ Allicino helped to unload the stolen

goods from the truck and to bring them to appellant’s first

floor factory by use of the freight elevator. When they

reached appellant’s floor, Allicino introduced appellant

Rosenwasser to the group as his “partner.” Rosenwasser

immediately proclaimed that he “did not want the load.”

An argument ensued between one of the thieves and Rosen-

wasser, in which the thief threatened to kill Rosenwasser

if he did not “take the load.”* At the conclusion of the

1 See note 6, supra.

2 The prosecution's version of the purchase of the stolen goods was not

the usual stereotype of an eager receiver.

Fleischer testified:

"Q When you frst met Mr. Rosenwaser in the loft there, did

you have a conversation with bim?

“A. No.

Did amyone have a conversation with Mr. Rosenwasser in your

preserce?

“A. Rocky was talking to Allicine and Rosenwasser.

AY

altercation, Fleischer testified, Ro~enwasser finally agreed

to buy one-third of the stolen goods.’ “They” were re-

quired to keep the rest of the load at Rosenwasser’s

factory until the hijackers found a second buyer. It was

agreed that the thieves would be paid $2300 by appellant

and his associates and that Allicino would deliver the

money to the house of one of the hijackers. He testified

that Allicino did deliver the money that night to the hi-

jackers and that it was divided by the group’s participants.

Two others were then shown samples of the stolen propert;

and sent to find a buyer for the rest. According to

Fleischer, the next morning the entire group picked up

“Q What did Mr. Mastriangelo say in your presence, what did

Mr. Alleine and Mr. Rosenwasser say n return?

“A. After the load was brought up Mr. Rosenwasser didn't want

the load.

“Q. What did he say?

“A. He didn't want it.

"“Q What did he say?

“A. He told it to everybody.

“Q. What was his reply?

“A. An argument broke out between Peters and Kosen ase:

“Q What did Charlie Peters say’

“A. Peters yelled out, In kill that Jew bastard if you don:

take the load.”

"Q@ When you say ‘they, what do you mean?

“A. Peters and Rosen u aer.

“Q. What was said, if you can recall, specifically!

“A. Tt was decided that they would take one third of the load

“Mr. Wallach: Objection.

“The Court: Yes.

“Q Try to remember—

“A. Ahlen said he would take one third of the load

"Q@ What did Mr. Rosenwasser say!

“A. He agreed.

“Q What did Peters say?

“A. But we have—they will take one third but they hove to keer

the rest of the load in their drop.” (Tr. 100-02).

3 FPieiseher indicated that when be told Allicino that the garments were

stolen, it was not in the presence of appellant, but the jury might infer

in the circumstances if Fleischer is believed, that Allicino passed on his

own knowledge to appellant

A-10

the rest of the load at Rosenwasser’s and took it to the

house of one Broverman and were paid for the goods.

FBI agent Ernest Day Haridopolos was permitted to

testify that on March 28, 1972 (a date after the substantive

count pleaded, and after the pleaded conspiracy had

ended), he arrested Allicino for having committed a similar

act and that he had charged Allicino with possession of

an interstate shipment of hijacked liquor. Not content

with testimony that Allicino had possessed a shipment of

stolen liquor, the prosecutor had him tell the jury that the

arrest of Allicino followed a surveillance of Allicino as he

unloaded the stolen liquor at the street level floor of 2395

Pacific Street, Brooklyn, the building in which Rosen-

wasser had his loft on the first floor and in which Allicino’s

brother was the elevator operator. That address had

already been testified to as the location of appellant’s

business, as well as being that of other tenants.

In addition to producing character witnesses, appellant

himself took the witness stand. Appellant denied any

involvement in the crimes charged. He conceded that he

was the owner of Trekon Sportswear, located at 2395

Pacifie Street, Brooklyn. He admitted knowing Allicino

and his family for 25 years, and that on March 6, 1972,

the date of the crime, he and Allicino were friends. Appel-

lant swore that he had never received the stolen garments.‘

Four employees of Rosenwasser who worked for him in

March 1972 testified that they never observed an incident

such as that described by Fleischer. It was stipulated that

“if approximately another 15 or 20 employees of the

4 Tt i= possible that fear of violence prompted appellant to consent to

take part of the load. That same fear may have prompted bim to deny

the incident, which, of course, be bad no right to do. On the other band,

the testimony of the hijacker may have been false, including the embel.

lishment of appellant's unwillingness and the coercive threat, and appel

lant may have told the truth in denying the whole incident.

411

factory were called, they would testify in a similar man-

ner.” Appellant also explicitly denied knowing that stolen

liquor had been stored on the ground floor of the building

during March 1972.

The Government had indicated before trial that it in-

tended to prove a subsequent crime by defendant Allicino.

Counsel for Rosenwasser moved for a severance on that

ground before trial. The motion was denied. At the open-

ing of the trial, counsel asked the judge whether he had

to renew the motion for severance when the United States

Attorney opened to the jury or whether it was sufficient

that it was brought to the court’s attention. The judge

did not respond directly on whether counsel had to renew

his motion, but, in effect, ruled that a new motion was not

necessary when he asked counsel to remind him after the

prosecution’s opening statement to tell the jury “that he

refers only to the defendant Mr. Allicino and does not

refer to Mr. Rosenwasser, if as and when proof is required

in that event.”

At this point the judge was informed that Allicino had

pleaded guilty to a violation of 18 U.S.C. § 659, unlawful

possession of liquor valued at less than $100 (a misde-

meanor).

The trial judge knew that Rosenwasser had sought a

severance or exclusion of the “other crime,” and that he

was ready to renew the motion at the trial. The court

also knew that since Allicino had pleaded guilty in con-

nection with the similar offense, a record of conviction

was available to establish the commission of the offense.

There was no need for oral testimony about the facts

involved in the “other crime.” *

A-12

The prosecution was, nevertheless, permitted to intro-

duce through Agent Haridopolos, who arrested Allicino

for the “other crime,” the whole story of Allicino’s involve-

ment in a quite separate crime which the court recognized

required a separate cautionary instruction to the jury to

the effect that it was not being offered against Rosen-

wasser. The story which Haridopolos was permitted to

tell ended with the stolen whiskey literally at co-defendant

Rosenwasser’s doorstep. This testimony was accompanied

by photographs taken showing the stolen liquor in the hall-

way of the building that was also appellant’s place of

business; the photographs were admitted over objection.

In the face of the uncontested conviction of Allicino for

this theft, to admit the photographs was, indeed, to gild

the lily.

This is, therefore, an unusual case. Generally when evi-

dence of a similar offense is admitted in a multiple defen-

dant trial it is abundantly clear that the co-defendant who

claims prejudice could not have been involved in the simi-

lar offense. In such circumstances, we have held a caution-

ary instruction to be sufficient. (See, ¢.g., United States

v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421

U.S. 950 (1975) (“clearly no connection with leo-defen-

dant's] corrupt activities”); United States v. Payden, 536

F.2d 541, 543 (2d Cir. 1976) (alleged misjoinder of count

with which appellant was not connected); United States

tion of Rule 803(22) of the Federal Rules of Evidence,—a proposition

we need not decide, the non-hearsay testimony of the agent with per

A-13

v. De Sapio, 435 F.2d 272, 280 (2d Cir. 1970) (“it had not

the slightest tendency to prove De Sapio’s participation

in the Con Ed conspiracy”) ).

But the evidence here had far more than “the slightest

tendency” to spill-over. United States v. De Sapio, supra.

The evidence tendered did not relate to a similar offense

by Allicino alone without any connection to Rosenwasser.

The stolen liquor was brought to appellant’s doorstep with-

out an iota of evidence that he had anything to do with

the stolen liquor. The prosecution conceded on oral argu-

ment in this court that it had “no idea” whether Rosen-

wasser was, in fact, connected with this crime. Yet, in its

opening argument the Government. stressed that the stolen

liquor was found at “exactly the same address, exactly

the same location in exactly the same building through

exactly the same doorway as the stolen sweaters and that’s

Mr. Rosenwasser’s building, and if that’s not exactly hold

me to it.” [sic] See Tr. at 19. This hardly seems fair play.

At this juncture no instruction could keep the jury from

being suspicious without proof, the very evil guarded

against by the rules of evidence. In sum, the circumstantial

evidence was not strong enough to show that appellant

committed the other offense, but it was, paradoxically,

strong enough to cast grave suspicion upon him.’ For the

stolen liquor, as we have seen, was laid at his very door-

step, at the street level floor in the very building where

he rented a loft upstairs. Prejudice was inevitable. The

spill-over effect is graphically shown in a letter from the

Probation Department to appellant’s wife in which it is

6 Even where evidence of a similar offense committed by the defendant

himself is offered, the proof must be “plain, clear and convincing.”

United States v. San Martin, 505 F.2d 918, 921 (Sth Cir. 1974); United

States v. Machen, 430 F. 2d 523, 526 (7th Cir. 1970). The proof of the

similar offense must not merely cast suspicion, for that would simply

compound the mischief.

A-14

stated that [when Allicino was arrested on the other

offense he was unloading stolen cases of whiskey at your

husband’s place of business.” (App. 201). If a trained

Chief Probation Officer believed appellant to be guilty of

the similar offense, what of a lay jury?’ Analogy is strong

to the constitutional vice found incurable by cautionary

instruction in Bruton v. United States, 391 U.S. 123 (1968).

On a pre-trial motion to sever in a multiple defendant

case, the trial judge should elicit from the Government

what evidence it intends to offer regarding an alleged

similar offense by one defendant which has a spill-over

likelihood with respect to another defendant. See Bruton

v. United States, supra; see United States v. Glover, 506

F.2d 291, 298 (2d Cir. 1974). If the spill-over is likely to

be prejudicial to the other defendant, the Court should

give the Government the choice of a severance or of ex-

clusion of the prejudicial evidence if the Government opts

for a joint trial. Under Rule 14 where a defendant is prej-

udiced by a joinder of defendants for trial together, the

trial judge has a “continuing duty at all stages of the trial

to grant a severance if prejudice does appear.” Schaffer v.

United States, 362 U.S. 511, 516 (1960). See United States

v. Papadakis, 510 F.2d 287 (1975). While Rule 14 speaks

in terms of discretion, the failure to grant a severance

in the circumstances here related was an abuse of discre-

tion and prejudicial error for the reasons stated herein.

Denial of a severance can, if prejudicial, be ground for

reversal. See Schaffer v. United States, 221 F.2d 17, 19

(Sth Cir. 1955); Barton v. United States, 263 F.2d 894

(5th Cir. 1959).*

7 It is possidle that a similar inference in the probation report may have

affected the sentence, and there should, at least, be a remand for re-

sentencing. See United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973).

‘ As the Advisory Committee on Rules noted, “The purpose of the

amendment [in 1966 to Rule 14) is te provide a procedure whereby the

A-15

After his efforts to gain a severance had failed, and in

the face of the courts’ decision that a cautionary instruc-

tion was enough to ward off prejudice, Rosenwasser’s coun-

sel sought to dissipate the circumstantial basis for the

spill-over prejudice by cross-examining agent Haridopolos.

Before a question was asked, however, the prosecution

objected to allowing appellant’s counsel to cross-examine

the agent at all. The court agreed with the Government,

and denied appellant any cross-examination upon the stated

ground that “‘[i]t’s not admitted against him.”

I think that the stated ground begs the question. Agent

Haridopolos’ testimony clearly implicated Rosenwasser.

Notwithstanding the precautionary instructions, therefore,

Haridopolos ought properly to be considered a witness

“against” Rosenwasser for confrontation purposes. The

constitutional right of confrontation is, in essence, a right

to cross-examine. Davis v. Alaska, 415 U.S. 308 (1974);

Douglas v. Alabama, 380 U.S. 415, 418 (1965); Bruton v.

United States, supra. The scope of the cross-examination

is, of course, largely within the court’s discretion. Alford

v. United States, 282 U.S. 687, 694, 51 S. Ct. 218 (1931);

see United States v. Jenkins, 510 F.2d 495, 500 (2d Cir.

1975). But appellate review of an absolute denial of cross-

examination stands in different case. In the words of Wig-

more, “The main and essential purpose of confrontation

is to secure for the opponent the opportunity of cross-

examination.” 5 Wigmore, Evidence § 1395 at 123 (Chad-

bourn ed. 1975) (emphasis in original).’

issue of possible prejudice can be resolved on the motion for severance.”

See Bruton, supra, at 132.

a Ironically, at least the postal inspector who testified to the oral con-

fession implicating Bruton was on the stand subject to eross examination.

Here the FBI agent was on the stand, but even he was held not to te

subject to cross-examination.

A-16

When the direct examination of the witness sought to be

cross-examined has affected the co-defendant, he must be

allowed to cross-examine, even if the witness is himself a

co-defendant. See United States v. Zambrano, 421 F.2d

761 (3d Cir. 1970). When the court permitted Agent Hari-

dopolos to spread before the jury the story of Allicino’s

other criminal conduct with the unfortunate and inevitable

suspicion of appellant’s participation because of the very

circumstances narrated, appellant had the right to clarify

the picture by cross-examination. A series of negative

responses by Haridopolos with respect to Rosenwasser’s

involvement would have done far more to dissipate the

prejudice than any cautionary instruction or argument by

counsel in summation.

As Judge Waterman wrote for this court in United

States v. DeCicco, 435 F.2d 478, 483 (2d Cir. 1970), re-

versing a conviction for conspiracy to transport stolen

goods, in spite of a cautionary instruction:

“Little discussion is needed to demonstrate that prior

similar acts of misconduct performed by one person

cannot be used to infer guilty intent of another per-

son who is not shown to be in any way involved in the

prior misconduct, unless it be under a ‘birds of a

feather’ theory of justice. Guilt, however, cannot be

inferred merely by association.”

Here the prejudice was more severe, for the jury, af-

fected by the prosecutor’s drawing the very inference in

his opening statement, must have been left with the gnaw-

ing suspicion that appellant might have had something to

do with the similar offense, thereby raising “a prejudicial

atmosphere of guilt by innuendo.” See United States v.

DeCicco, supra, at 482, n.5.“

10 In United States v. Zane, 495 F.2d 683 (24 Cir. 1974), the judge

refused appellants the right to cross-examine a witness who contradicted

A-li

The lack of independent evidence, aside from Fleischer's

testimony linking appellant to the crime, fortifies the con-

clusion that serious prejudice would have resulted from the

way the prosecution presented its case, and from the way

the trial court denied appellant’s efforts to minimize the

prejudice.”

J have written at some length, because I am troubled

by this case, not only by the unfairness to which appellant

was subjected, but because, with due respect, affirmance

of what the majority concedes “is a close question, and

appellant’s argument is not without merit” represents, for

me, an abdication of our true appellate function.

One cannot help reflecting that justice tends to become

bogged down in precedents which at the time they were

announced no more expressed the view of the authors on

an issue that surfaces later, than the legislature actually

thought about an unintended gap in a statute. I predict

with unhappy confidence that the majority opinion, will

the testimony of a co-defendant Persky, on rebuttal, because of an n.

struction that it was admitted only against Persky. We said at 694:

“if this ruling were crucial we might doubt its soundness as a general

principle, since the ‘rub-off’ effect of testimony against a co-defendant

may sometimes prejudice a defendant, despite an instruction that it

is not to be considered against him, see Krulewitch v. United States.

336 U.S. 440, 454 (1949) (Jackson, J., concurring); Blumenthal v.

United States, 332 U.S. 539, 559 (1947). But we held that, on that

record, “nothing in Persky’s statement as recounted by Green could have

prejudiced Zane and Silverman.” Here that is just not so. And in the

language of Judge Mansfield in Zane, we do have to “cross that Rubicon

in this case,” ibid.

11 On a new trial, I would have suggested that FBI Agent Redmon not

he permitted to state again simply that be had a conversation with

appellant without any explanation of its content. No purpose is served

by the testimony that the agent had a conversation with a defendant

without more, other than to permit the jury to engage in idle speculaticn

that some technical rule prevented the truth from being presented or

that appellant had claimed his privilege against self-incrimination. The

Government offers no credible support for the technique sed or, indeed.

for its relevance.

A-18

be cited in all manner of circumstances as establishing

that anything goes so far as multiple defendant trials are

concerned. In my view, that is not good for a balanced

and fair system of criminal law. There are few areas in

which it is as important for this court to keep a watchful

eye as on the admissibility of similar offenses in a case

involving more than a single defendant. For this case is

only a variation of the Bruton problem.

I would reverse the conviction and order a new trial.

4¹9

Judgment of the United States Court of Appeals

for the Second Circuit Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

twenty-second day of April, one thousand nine hundred

and seventy-seven.

Present:

How. Pat. R. Hays

How. WI IAA H. Timsers

How. Murray I. Guarer

Circuit Judges.

76-1260

Usirep States or AMERICA,

Plaintiff -A ppellee,

v.

Geratp Atiictno, Srrmovur Rosenwasser,

Defendants,

Szymovur Rosen wasseEr,

Defendant-A ppellant.

A petition for a rehearing having been filed herein by

counsel for the defendant-appellant Seymour Rosenwasser,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Dayret Fvusaro

Clerk

A20

Judgment of the United States Court of Appeals

for the Second Circuit Denying Petition for

Hearing In Banc

UNITED STATES COURT OF APPEALS

Seconp Cincurr

At a stated term of the United States Court of Appeals,

in and for the Second Cireuit, held at the United States

Court House, in the City of New York, on the twenty-

second day of April, one thousand nine hundred and

seventy-seven.

76-1260

—

Unirep States or AMERICA,

Plaintiff-Appellee,

V.

GeraLp ALLicixo, Seymour Rosexwasser,

Defendants,

Seymour Rosen wasser,

Defendant-A ppellant.

—

A petition for rehearing containing a suggestion that the

action be reheard in banc having heen filed herein by coun-

sel for the defendant-appellant Seymour Rosenwasser, and

no active judge or judge who was a member of the panel

having requested that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Dewzep.

/s/ Invisc R. Kavrmaw

Invixe R. Kavrmay,

Chief Judge