Opposition — Rosenwasser v. United States

No. 76-1631 SEP 131977

Octorer Term, 1977

SEYMOUR ROSENWASSER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wape H. McCree, Jr..

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

Jerome M. Fert,

ELLIOTT SCHULDER,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

GRREIESED QERBW cccsccssscsrcesssssscsscccsecssceccsscesecsesseessenesesaseces l

PITTI cocnipcespamusspentinsnenabignengmemmmscmmenedummmennmmngnen |

GRE UREGRIND cccssesccesensccscnssnnmscsesescncccssnsssscsccnseseess l

STITT =cxnsinpmmpennpeutusensanepasapennenneunensanemeanenumegnncenmauenststs 2

PRETITTD ccccsnscensescsssssenscsennssenascasesssscconmsentuscansansesssersssese 5

ee it

CITATIONS

Cases

Geders v. United States, 425 U.S. 80 .000........0000000 9

Opper v. United States, 348 U.S. B4 oo... 6

Shotwell Manufaciuring Co. v. United

0 ne 6

United States v. Baum, 482 F. 2d 1325 .0..........000. x

United States v. Brettholz, 485 F. 2d 483,

certiorari denied, 415 U.S. 926 200.........cccceeeeees 5

United States v. Bruton, 391 U.S. 123 ............ 6, 8,9

United States v. Davis, 546 F.2d 617 .........0ccccccc0es 6

United States v. Frazier, 394 F. 2d 258,

certiorari denied, 393 U.S. 9B4 2000... 6

United States v. Kaplan, 554 F. 2d 958 ................. 8

United States v. Leonard, 524 F. 2d 1076,

certiorari denied, 425 U.S. OSB 200.0000... 5

United States v. Partin, 5S2 F. 2d 621,

petition for certiorari pending, No. 77-34 ........... i!

i

Page

Cases continued:

United States v. Pauldino, 443 F. 2d 1108,

certiorari denied, 404 U.S. 882. .000.....eeeeee 6

United States v. Strand, 517 F. 2d 711,

certiorari denied, 423 U.S. 99B ooo ecceeees 8

Statutes and rules:

TaD Gite LOD contesencineniessnnibitabeancinininntebiniinniniemane 2

BaD Wirs GHEEP cesnccnducnnmsentncntonsinngninniennesinbinninnctoinms 2

PU Cle Cee GEE cnsictntnicncnscsetnenntendinnitdinmenmnsinsonss 5

In the Supreme Court of the United States

OcToBEeR Term, 1977

No. 76-1631

SEYMOUR ROSENWASSER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The majority and dissenting opinions of the court of

appeals (Pet. App. A-| to A-18) are reported at 550 F. 2d

806.

JURISDICTION

The judgment of the court of appeals was entered on

February 24, 1977. A petition for rehearing with a sugges-

tion for rehearing en banc was denied on April 22, 1977

(Pet. App. A-19 to A-20). The petition for a writ of certio-

rari was filed on May 23, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Confrontation Clause requires reversal of

petitioner's conviction because the district court permitted

(1)

2

a government witness to testify, over petitioner's objec-

tion, regarding a similar offense by his co-defendant,

denied petitioner's request for cross-examination, but in-

structed the jury that it was not to consider this evidence

against petitioner.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, petitioner

was convicted, together with co-defendant Gerald Allicino,

of unlawful possession of goods stolen from interstate

commerce, in violation of 18 U.S.C. 659. The jury acquit-

ted petitioner of conspiracy to possess stolen goods, in

violation of 18 U.S.C. 371, although it convicted Allicino

of that charge. Petitioner was sentenced to two years’

imprisonment and a $5,000 fine. The court of appeals

affirmed, one judge dissenting (Pet. App. A-! to A-18).!

Through the testimony of Paul Fleischer, a convicted

felon and self-confessed truck hijacker (Tr. 35-49, 129-

154, 158-159),? the government established that, on March

3, 1972, Fleischer and several confederates hijacked an

Arlene Knitwear Company truck that was carrying a

shipment of women’s garments (Tr. 60-66). Later that day

the hijackers met with co-defendant Allicino, who agreed

to purchase the entire load after viewing samples of the

stolen garments and copies of the shipping documents

(Tr. 83-87). Arrangements were made for the delivery of

the shipment to Allicino on March 6, 1972, at 2395 Pacific

Street, in Brooklyn, New York (Tr. 87-88).

'Allicino’s appeal was voluntarily withdrawn in the court of ap-

peals (Pet. App. A-2 n. 1).

“Tr.” refers to the transcript of the proceedings before the dis-

trict court.

3

On March 6, 1972, the hijackers transported the stolen

merchandise to the Pacific Street address. They were met

there by Allicino, who helped unload the goods and di-

rected that they be brought to petitioner's first floor

garment factory on a freight elevator that was operated

by Allicino’s brother (Tr. 95-98). Allicino introduced peti-

tioner to the others as his “partner” (Tr. 99). At first

petitioner protested that he did not want the goods, and

an argument ensued between petitioner and one of the

hijackers, but petitioner and Allicino finally agreed to

purchase one-third of the shipment and to keep the re-

mainder at the factory until the hijackers could locate

another buyer (Tr. 101-102). Petitioner and Alllicino

agreed to pay $2,300 for their share, and Allicino delivered

the money to the hijackers that evening (Tr. 104-110).

The next day the hijackers returned to petitioner’s factory,

picked up the remaining merchandise, and delivered it

to Solomon Broverman (Tr. 118-124).’

As part of its direct case the government called

F.B.1. Agert Ernest Haridopolos, who testified—over

petitioner’s objection—that some three weeks after the

garment hijacking he arrested Allicino for committing a

similar act, possession of a stolen interstate shipment of

liquor. Haridopolos had observed Allicino unloading

the stolen liquor at the street level doorway of the

building at 2395 Pacific Street where Allicino’s brother

was the elevator operator (Tr. 307-317). Although Agent

Haridopolos did not mention petitioner in his testimony,

other evidence at trial (including petitioner's testimony)

established that this was the same building in which

petitioner’s firm rented space.

‘When Fleisher led F.B.1. agents to Broverman’s residence they

discovered seven boxes of stolen merchandise (Tr. 295-296).

4

On three separate occasions the trial court cautioned

the jury that Agent Haridopolos’ testimony was admis-

sible only against Allicino, and was to be considered

solely on the question of Allicino’s knowledge and in-

tent to commit the crime charged (Pet. App. A-3 to A-5 nn.

2, 3).4 Petitioner sought to cross-examine Haridopolos

concerning Allicino’s possession of the stolen liquor in

order to dispel any “spillover” as to petitioner. The pros-

ecutor objected on the ground that the agent’s testimony

had not been introduced against petitioner. The court

ruled that since the evidence was not admitted against

petitioner (and since this limitation as to its admissibility

had been made clear to the jury) petitioner could not

cross-examine Haridopolos. The court added, however,

that petitioner was free to call Haridopolos as his own

witness, whereupon the prosecutor indicated that if peti-

tioner questioned Haridopolos (either as his own witness

Or OM cross-examination) he would thereby “open the

door” to further inquiry concerning petitioner's involve-

ment with the stolen liquor. Petitioner then declined to

examine Haridopolos (Tr. 319-321).

Petitioner testified on his own behalf and denied

any involvement in the crimes charged (Tr. 401-404).

He conceded that he operated a women’s garment manu-

facturing business in a first floor factory loft at the Pacific

Street building, but he testified that the building was

also occupied by other commercial tenants. Petitioner

‘These cautionary instructions were given: (1) following the pros-

ecutor’s reference to the evidence in his opening statement (Tr. 19-

20): (2) prior to Agent Haridopolos’ testimony (Tr. 310), and (3) in

the court's final charge before submitting the case to the jury (Tr.

618-620). In addition, the jury was instructed that the guilt of each

defendant must be determined separately and only on the basis of

the evidence (or lack of evidence) against him (Tr. 593).

5

denied any knowledge of the stolen liquor that had been

stored in that building during March of 1972 (Tr. 416-

419). He admitted his long friendship with Allicino, who

resided on Pacific Street across from the building that

housed petitioner's factory (Tr. 4%4-406).

ARGUMENT

Petitioner contends (Pet. 6-8) that the similar offense

evidence of Allicino’s subsequent possession of stolen

liquor was in fact used against petitioner, and that it

was therefore reversible error for the trial judge to prevent

his cross-examination of Agent Haridopolos concerning

that episode. Although, as the majority below observed,

petitioner's argument is “not without merit” (Pet. App.

A-5), the court of appeals correctly concluded that the

district court committed no reversible error in the particu-

lar circumstances of this case.

The trial judge properly exercised his discretion in

admitting, as to Allicino, the proof of his subsequent

criminal act, because it was relevant to his intent to partic-

ipate in the conspiracy charged, as well as to his knowl-

edge that the goods he received were stolen. See United

States v. Leonard, 524 F. 2d 1076, 1091 (C.A. 2), certio-

rari denied, 425 U.S. 958; United States v. Brettholz,

485 F. 2d 483, 487-488 (C.A. 2), certiorari denied, 415

U.S. 976; Fed. R. Evid. 404(b). Petitioner does not dispute

that the trial judge instructed the jury on three separate

occasions that this evidence was to be considered only

against Allicino, and only for this limited purpose (Pet.

App. A-3 to A-5 nn. 2, 3).

He maintains, however, that although he had nothing

to do with the stolen liquor transaction, Agent Harido-

polos’ testimony suggested his involvement, because the

liquor was being unloaded at the building in which peti-

tioner had his factory. Accordingly, he contends that this

6

evidence was introduced against him as well as against

Allicino. Petitioner urges that in this case, as in United

States v. Bruton, 391 U.S. 123, a cautionary instruction

was not adequate to ensure that the jury would consider

this evidence solely against petitioner's co-defendant.

This is a somewhat more difficult case than one in

which one defendant's similar act has no logical connec-

tion with his co-defendant, and thus its admission could

not possibly prejudice this co-defendant. Yet, here, unlike

Bruton, it is far from clear that “the risk that the jury will

not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the

practical and human limitations of the jury system cannot

be ignored.” 391 U.S. at 135. This Court also recognized in

Bruton that in “many circumstances * * * reliance [on

limiting instructions] is justified” (ibid.), and in most

circumstances a reviewing court must presume that the

jury followed its instructions. See Shotwell Manufactur-

ing Co. v. United States, 371 U.S. 341, 366-367; Opper

v. United States, 348 U.S. 84, 95; United States v. Davis,

546 F. 2d 617, 620-621 (C.A. 5); United States v. Paul-

dino, 443 F. 2d 1108 (C.A. 10), certiorari denied, 404

U.S. 882; United States v. Frazier, 394 F. 2d 258 (C.A. 4),

certiorari denied, 393 U.S. 984.

In Bruton, the evidence in question was testimony re-

garding an oral confession by Bruton’s co-defendant, in

which he had admitted that both he and Bruton had com-

mitted the crime for which they were being tried. The

Court characterized this testimony as so “powerfully

incriminating” and “devastating” to Bruton, while at the

same time so “inevitably suspect” as the testimony of a

co-defendant, that a limiting instruction could not be pre-

sumed to be effective. 391 U.S. at 135-136.

;

Here, in contrast, the evidence was a far cry from the

powerfully incriminating statement of a co-defendant ad-

mitting that petitioner had committed the very act for

which he was being tried. Instead, it was only evidence

that several weeks after the offense charged co-defendant

Allicino unloaded a shipment of another kind of stolen

goods at the building in which Allicino’s brother worked—

which was, as shown by other evidence, the building in

which petitioner was a commercial tenant. As the court

of appeals correctly concluded (Pet. App. A-6; footnotes

omitted):

Under the circumstances of this case, these limit-

ing instructions were sufficiently strong to preclude

the jury from utilizing the agent’s testimony to con-

vict 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 em-

ployment 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 Harido-

polos’ testimony exclusively against Allicino. * * *

At most, this evidence might leave the jury, as the dis-

senting judge in the court of appeals stated, “with the

gnawing suspicion that [petitioner] might have had some-

thing to do with the similar offense * * *” (Pet. App.

A-16). But petitioner was not being tried for any offense

in connection with the stolen liquor. And this evidence,

which raised merely a “suspicion” in connection with

that offense, was certainly not such compelling proof of

his guilt in the stolen garment episode—for which he was

being tried—that it raised a presumption that the jury

could not or would not follow its instructions.‘

Moreover, although there was, perhaps, a somewhat

greater danger that the jury might disregard the limiting

instruction and consider Haridopolos’ testimony as pro-

bative of petitioner’s guilt on the conspiracy charge, the

jury acquitted him of conspiracy. The majority below cor-

rectly viewed this as a further indication that the jury had

followed the trial judge’s instructions (Pet. App. A-6 n. 7).

See United States v. Kaplan, 554 F. 2d 958, 967 (C.A. 9);

United States v. Partin, 522 F. 2d 621, 641 (C.A. 5), peti-

tion for certiorari pending, No. 77-34; United States v.

Strand, 517 F. 2d 711 (C.A. 5), certiorari denied, 423

U.S. 998; United States v. Baum, 482 F. 2d 1325 (C.A.

2).

Nor is there any suggestion that the evidence in ques-

tion is “inevitably suspect” like that in Bruton. In con-

trast to a co-defendant’s statement, as to which the Court

in Bruton observed there is a “recognized motivation to

shift the blame onto others” (391 U.S. at 136), the evidence

here was an F.B.I. agent's testimony regarding his ob-

servation of co-defendant Allicino just before his arrest.

Indeed, petitioner does not in any way challenge the re-

liability of this testimony.

Accordingly, the court of appeals correctly concluded

that in the circumstances of this case, the trial court's

repeated limiting instructions were “sufficiently strong to

‘Petitioner emphasizes (Pet. 7-8) the suggestion in a letter his

wife received from the Department of Probation that his sentence

was justified, in part, by his participation in the stolen liquor epi-

sode. We do not agree that any possible confusion on the part of the

probation department establishes that the jury, which had the bene-

fit of the court's careful instructions, was similarly confused.

9

preclude the jury from utilizing the agent's testimony

to convict” petitioner (Pet. App. A-6).

2. Since this evidence was not admitted against peti-

tioner, and the district court properly assumed that the

jury would follow his instructions on this point, the court's

refusal to allow petitioner to cross-examine the agent did

not constitute an abuse of discretion. The trial judge

necessarily has broad discretion to control the scope of

cross-examination. See Geders v. United States, 425

U.S. 80, 87. Here the evidence was not admitted against

and did not incriminate petitioner, and the court's dis-

cretionary ruling did not impair either petitioner's right

of cross-examination or his right to confront the witnesses

against him.°®

As the court of appeals observed, the jury might well

have been confused by petitioner's cross-examination of

Haridopolos after it had been instructed that his testi-

mony was not admissible against petitioner (Pet. App.

A-7). Indeed, when the district court gave petitioner

the opportunity to examine Haridopolos as his own wit-

ness, petitioner declined, and the transcript suggests that

*In Bruton, in contrast, the Court held that the petitioner had not

been afforded the right to confront the witnesses against him de-

cause he had no opportunity to cross-examine his co-defendant. al-

though the trial court's instructions were not adequate to ensure

that the jury would not consider his c ~tefendant’s powerfully in-

criminating but unreliable confession. The Court held that in those

circumstances the limiting instruction was not an adequate sub-

stitute for cross-examination: “{t}he effect [was] the same as if there

had been no instruction at all.” 391 U.S. at 137.

his counsel had decided to “leave the door shut” for

tactical reasons.’

"The following colloquy occured when the government objected

to petitioner's attempt to cross-examine Haridopolos (Tr. 319-321.

emphasis added):

[Assistant United States Attorney]: | am objecting to any

cross-examination by the defendant Rosenwasser and ask that

the jury be instructed that none of his evidence comes in against

him.

Mr. Peluso [petitioner's co-counsel}: In addition to that

language being ambiguous as to the address at 2395 Pacific

Street, now the impression can be—

The Court: No. it's not admitted against him.

Mr. Peluso: | think | should make it clear to the jury.

The Court: / have made it clear to the jury. You can call

him as your ov-n witness. You can instruct him to remain and

put him on the witness stand, if you wish.

Mr. Wallach [petitioner's co-counsel]:; May we just have a

moment, Judge.

The Court: Yes.

(Whereupon, an off-the-record conversation was held.)

The Court: | am assuming, [that the Government is] going

to be resting momentarily.

[Assistant United States Attorney]: | will say this, your

Honor, that the Government will take the position that if

Mr. Peluso cross-examines this witness or, in fact, calls him as

his own witness, the door will be opened wide for any inquiry

that | might want to make, with respect to any knowledge he

may have about anything that the defendant Rosenwasser—

Mr. Wallach: / guess we will leave the door shut.

The Court: /t's up to you.

Mr. Peluso: Judge, am | going to be allowed to examine

on those exhibits that were in evidence?

The Court: You will be allowed.

Mr. Peluso: Thank you. | will abide by your Honor's rul-

ing. and | will not examine, subject to your Honor’s rule.

(Whereupon, the following took place before the jury.)

Mr. Peluso: In view of your Honor'’s ruling, | have no further

questions of this witness.

In these circumstances the court of appeals correctly

concluded that (Pet. App. A-7):

We simply do not agree that cross-examination, with

the attendant confusion, would have been more ef-

fective than the limiting instructions in aiding the

jury to disregard the stolen liquor evidence as against

Rosenwasser. * * * We therefore hold that the dis-

trict court did not abuse its discretion in denying

petitioner the right to cross-examine Haridopolos.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Felt,

ELLIOTT SCHULDER,

Ailtorneys.

SEPTEMBER 1977.

DOJ-1977-09