Petition for A Writ of Certiorari — Oddo v. United States

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SUPREME or U. »

. IN THE SUPREME COURT OF THE

- UNITED STATES|™F'TSs"

OCTOBER TERM, 1968 | ° JUL 18 1968

7 [dF Davis, CLERK

“Noe 3QO2 gee

ANTHONY NUNZIO ODDO

_ Petitioner

Vs.

UNITED STATES OF AMERICA

Respondent he

PETITION FOR A WRIT OF CERTIORARI TO THE , a

' ,UNITED STATES COURT. OF APPEALS | |

FOR THE FIFTH CIRCUIT |

NICHOLAS CAPUANO of

LURIE & CAPUANO

Attorneys for Petitioner

1409 Biscayne Building

- Miami, Florida 33130

— eae <a

e A

ceseiditaeeelllan a

——— ty

Sirs ttm

'. Jurisdiction :

Opinions Below .

Questions Presented

“

~ §tatutes and. Rules Involved ..

Statement of. the Case .

‘Reasons for Granting Writ of Certiorari ............

Certificate of Service-.

Appendix A— Opinion Below js ee

Appendix B— Letter Granting Say of Mandate... bain

Appendix C aia V of the Constitution

of the United recess

Appendix D — Brief of Appellant

Appendix E— Judgment -.

AUTHORITIES CITED

Case ”

United States v. Byrd, 352 Fed. 2d 510, C.A.N. . -

1965

Page

6,8

ce ae

peer

IN THE SUPREME COURT oF THE

UNITED STATES

OCTOBER TERM, 1968

No.

ANTHONY NUNZIO ODDO

' Petitioner

. Vs. ' ‘

UNITED STATES OF ‘AMERICA.

| It sienias

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Comes now ANTHONY NUNZIO ODDO, Petitioner’ -

herein, by and through his undersigned attorneys, and

respectfully prays this ‘Honorable Court to issue a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit entered on the

18th day of } Pape, 1968.

OPINIONS BELOW:

The opinion of the Court of Appeals for the Fifth

Circuit is found in Appendix A hereof. _—

. 2

| JURISDICTION . |. ;

Jurisdiction of this Court is invoked pursuant to the

“provisions of Rule 37(b)(1)(2) of thé Federal Rules of

Criminal Procedure. The United States Court of Appeals

‘for the Fifth Circuit rendered its opinion in this cause on

the 18th day of June, 1968, and thereafter on the 25th day

of June, 1968, a stay of mandate was granted by the said

Court to your Petitioner for the purpose. of: Petitioner

- filing a petition for a writ of certiorari to the United

States Court of Appeals for the Fifth Circuit. (Appendix

QUESTIONS PRESENTED

WHETHER OR NoT THE COURT ERRED IN AD-

MITTING INTO EVIDENCE OVER OBJECTION OF.

COUNSEL GOVERNMENT’S EXHIBITS 3, 4 AND 5.

AND ALL OF THE:-EVIDENCE. ADDUCED WITH

_. REFERENCE TO SAID EXHIBITS, SAID EVIDENCE

_ HAVING BEEN HEARD IN A PREVIOUS TRIAL AND’

JUDGMENT OF ACQUITTAL HAVI NG B E EN .

GRANTED AT SAID sAalriadtad TRIAL. ,

| 7 ll 7

WHETHER OR NOT THE COURT ERRED IN AD-

MITTING EVIDENCE OF A PREVIOUS TRIAL

WHEREIN YOUR. PETITIONER WAS FOUND NOT

GUILTY.

Ti”

WHETHER OR NOT THE ADMISSION OF SUCH

EVIDENCE IS VIOLATIVE- OF PETITIONER’S CON-

STITUTIONAL RIGHTS UNDER THE FIFTH AMEND-

* MENT WITH REFERENCE TO DOUBLE JEOPARDY.

STATUTES AND RULES INVOLVED

_ United States Constitution, Fifth Amendment. Text

of same is set forth in Appendix C hereof.

- STATEMENT OF THE CASE

\ ,

The Petitioner was indicted by the Federal Grand |

Jury in and for the Southern District of Florida on or.

about February 23, 1966. ‘The indictment contained three ~~

counts, one of which charged the Appellant with trans-

fer and delivery to another of a counterfeit note for the *

purpose of passing same in violation of Section 473, Title

18, U.S. Code. Counts 2 and 3 charged the Appellant with ©

_ passing counterfeit notes with’ intent to defraud in vio- —

lation of Section 472; Title 18, U.S. Code. Counterfeit notes

in each instance were $10. 00 notes.

The appellant was tried twice. In July of 1966, he was:

tried with a jury before the Honorable Emett: C. Choate,

which resulted in a verdict of not guilty as to Count One —

and a disagreement as to Count Two. As to Count Three,

. the Court granted Appellant’s motion for judgment of

acquittal at the close: of the Goverriment’s case.

The second trial as to Count Two was begun on Feb-

ruary 13, 1967,.with a jury before the Honorable Wm. 0. -

PAT iD

Mehrtens and a verdict of guilty was brought in by the

jury on. Penny 14, 1967.

~The Government produced at the trial, over objection

of Appellant’s counsel, all of the evidence produced at the

first trial as to Counts One and Three, as well as to. Count

-Two. The Government’s. witnesses testified that on De- —

cember 7, 1965, the Appellant Oddo went into a Publix

Super Market in Hallandale, Florida, together with an-

other individual named David Esterkes, that on this oc-

. easion, Oddo, together with Esterkes, went through an ©

aisle where a cashier by the name of Kamp was in charge

and that Oddo made a ‘purchase of a small item and, in ~

payment for this purchase, he tendered a $10.00 bill.

Esterkes also made a small purchase and he also tendered

-_ a $10.00 bill in payment of same. Oddo then went back

through the store and came back through the next aisle

. with a small purchase and handed a $10.00 bill to a cashier

named Beverly Nichols. The bagboy named Robert Pole

was attracted to this transaction and he took the top

$10.00 bills from the registers of Kamp and Nichols. He

thought there was something funny about the money ‘so

he gave the notes to a Miss Martin, who was one of the

head cashiers, and then the bagboy went out and took —

down the license number of Oddo and Esterkes. The

police and Secret Service were called, the bills were de-

termined to be counterfeit, and later the Appellant Oddo

and Esterkes were apprehended. Esterkes was not tried

but was used as a Government witness and he testified

that he had spoken to Oddo with reference to counter-

_feit money.

; _ | \ > :

The Government also produced evidence that the.

Appellant Oddo was a patient/of Dr. Sumner, Cohen and:

that, some time in the middle of December, 1965, the Ap- -

pellant Oddo gave to Dr. Cohen some bills which were

placed with other money in his wallet. That on the 17th of

December, the said Dr. Cohen used the.-money that was

given to him,by Oddo-and others to purchase. jewelry at |

- the Continental Jewelry Store in the Seybold Building in

Miami. From there, some of the money was sent to the

First National Bank on the Monday following Decembér

17, 1965, and the teller observed that one of the bills was

counterfeit. The Government further produced a witness

who was sent by the Continental Jewelry Store to buy

stamps at the Post Office where another note was de-

tected as counterfeit and a third note was found in the

Continental Jewelry Store. :

The foregoing, sonatas with all of the witnesses

‘testifying as to their knowledge of the facts, was all of

‘the testimony adduced by the Government in support ae

: their case.

REASONS FOR GRANTING bead OF CERTIORARI

- It is venjteatelie submitted that the writ sought by

your Petitioner should be granted for the reason that the

en Circuit Court of Appeals in applying, the principle

at evidence of acquittals should be permitted for the

purpose of showing knowledge and intent of |

’ cused of crime is vidlative under Petitioner’s constitutional

rights under the Fifth Amendment as to double jeopardy

in that the Court is allowing the Government in its proof

to do indirectly what it cannot do directly and it is fur-

ther respectfully submitted that the opinion of the Fifth

Circuit Court of Appeals failed to properly apply the

facts in this case to the law as set down in United States

v. Byrd, 352 Fed. 2d 570, C.A.N.Y., 1965, which held as

follows:

_ “One of these points concerns the admission

by the trial court of evidence of Byrd’s activities

in connection with the auditing of the Sandberg

‘tax return. The Government offered it as a part

of its main case for the purpose of showing

criminal intent. A vigorous objection was made

‘by the defense but the court admitted it. The

admissibility of this kind.of evidence is ‘a mat-

ter in which the trial judge should be allowed a

. wide range of discretion.’ United States v. Feld-

man, 136 F. 2d 394, 399 (2 Cir.). The exercise

of discretion must be addressed to a balancing

of the probative value of the proferred evidence,

on the one hand, against its prejudicial charac-

_ter, on the other. The probative. value is meas-

ured by the extent to which the evidence of prior

criminal activities, other than a _ conviction,

closely related in time and subject matter, tends

to establish that the accused committed the crim-

inal act charged in the indictment knowingly or

‘with criminal intent or tends to negative the

claim that the acts were committed innocently

or through mistake or misunderstanding.

“It is generally iced that there can be

no ‘complete assurance that the jury even under

the best of instructions will strictly confine the

-. use of this kind of evidence to the issue of knowl-

—

edge and intent and wholly put out of their

minds the implication that the accused, having

committed the prior similar criminal act, prob-

ably committed the one with which he is ac-

tually charged. The court in its colloquy with

defense counsel conceded that prejudice of this

sort would result to Byrd in Aveta in the evi-

dence.

' “From the quality of proof standpoint for

proving knowledge and intent, its probative

value was largely cumulative. The evidence

came from the mouth of the same witness, Kauf-

man, who testified to the occurrences in the first

two counts. If the jury believed his testimony

"as to those counts, the relating of the Sandberg

incident added little,.if anything, toa revelation

of Byrd’s state of mind. If they had disbelieved

Kaufman’s testimony: about the first two counts,

it is not very likely they would have believed his

story about the Sandberg tax audit.

“Another factor to be considered. is whether

the Government .was faced with a real necessity

which required it to offer the evidence in. its

main, case. The Defense had not, either in its

claims or the statement of facts which it would

seek to prove, ‘sharpened’ the issue of intent by

asserting that the act charged was done inno- -

cently or by accident or mistake. McCormick, |

Evidence, §157 at 331 (1954); Vol. 1 Wharton’s |

Criminal Evidence, §237 at 528 (12th ed. 1955)..

Nor did the Government suffer from a lack of

evidence of intent. Kaufman’s testimony relat-

ing to the first two counts furnished ample evi-

denee of knowledge and intent, of the same kind

and quality as that shown by his testimony con- -

cerning the Sandberg tax returns. There was . ~

therefore no pressing necessity that evidence of

that prior occasion be offered on the Govern-

_ ment’s main case. United States v. Ross, 321 F.2d

61, 67 (2nd Cir. 1963). It is, of course, conceiv-

able that in'some cases proof of the offenses

charges would contain little or nothing from

which an inference of guilty intent could be

drawn. In such.a.case a trial judge would, in

the exercise of his discretion, be justified in ad-

mitting as part of the Government’s case, proof

of a prior similar offense to show knowledge or

intent. For. the present purpose of this dis-

cussion it is enough to point out that the scope

of discretion does not include every offer of a

prior similar offense which may contribute

something to a showing of intent in the Go overn-— ee es

‘stantial. and ‘the ties value, through the

nature of the evidence or the lack of any real

“necessity ‘for it, is slight, its’ admission at that

stage may be held to be an abuse of discretion.

-Under’ such circumstances the better practice

would be to sustain the objection to the offer

‘ on the Government’s main case without prejudice -

to its re-offer in rebuttal, if then warranted.”

It is reupeit@ally suggested further that at the trial

the évidence submitted over objection of counsel as to

_ three alleged counterfeit bills marked Exhibits 3, 4 and.

5 for the Government and having been passed to one

c a | 9

Dr. Cohen that the testimony will show that Dr. Cohen

could not identify those bills and could not: state at any

time that they were in his wallet. The only thing that

he can state is that he was given some money by the Pe-

titioner which may have been $10.00 bills.

It is respectfully 7 that, under: those cir-

cumstances where the identification of the bills sup-

' posedly passed is questionable as to their coming from

your Petitioner and the.Court having granted a judg-

ment of acquittal at the close of the Government’s case

at the previous trial of your Petitioner and the Court

allowing all of the evidence with yeference to said ex-

hibits over objection of counsel to be heard by the jury

was highly prejudicial and violative of Defendant’s con-

stitutional rights and in direct conflict with United States

v. Byrd, supra.

es further respectfully submitted that the Fifth

Circuit erred in its opinion (Appendix A) in deciding this .

point more fully raised in your Petitioner’s brief attached. ;

hereto and made.a part of the petition for writ of cer-

tiorari as a C.

It is, cheneleis: respectfully submitted that}: the

‘United States Court of Appeals for the Fifth Circuit did

err in the entry of the opinion herein and that the, writ

-herein sought should be issued and the decision of the

Fifth Circuit of the United States Court of Appeals be

reversed. \

Respectfully submitted,

* « ° . LURIE & CAPUANO

Attorneys for Petitioner ©

. 1409 Biscayne Building

Miami, Florida 33130

- Nicholas J. Capuano

CERTIFICATE: OF SERVICE

on hereby certify that a true copy of the above and

foregoing Petition was mailed to the Solicitor General, ©

Department of Justice, Washington, D. C., this

, day of July, 1968.

‘

Nicholas J . Capuano

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

_ FOR THE FIFTH CIRCUIT. |

No. 24918.

ANTHONY NUNZIO ODDO,

~ versus

»- UNITED STATES OF AMERICA, |

| | Appellee.

-. Appeal from the United States District Court. for the

Southern District of Florida.

(June 18, 1968.)

Before POPE,* TUTTLE and CLAYTON, Circuit Judges.

PER CURIAM: The appellant was indicted on three

counts for the crime of passing counterfeit money. The ..

trial on these three counts ended with a verdict of not

~ guilty as to count one, disagreement of the jury as to

count two, and acquittal as to count three. He was then

tried again on the second.count. Duririg the course of

.. the trial the government introduced in’ evidence all of .

* Of the Ninth Circuit, sitting by designation.

Appellant,

€' 1

_ the evidence that had previously been introduced in sup-

port of the two counts on which the appellant had been

acquitted. This was over the objection of the appellant,

who riow contends that the admission of such evidence '

was error. 7

The rule that permits the introduction of evidence

relating to similar transactions to show knowledge and

intent of a person accused of crime, is not restricted to

/ proof of transactions adequate to establish guilt of ¥ prior

or different offense. Under the principle announced by

this court as early as Pilcher v. United States, 113 Fed.

248, we conclude that the trial court did not err in the

admission of this evidence.

The ‘iit, is AFFIRMED.

APPENDIX B-

_ UNITED STATES COURT OF APPEALS .

FIFTH CIRCUIT ,

OFFICE OF THE CLERK

' -June 25, 1968 .

Mr. Max Lurie

. Attorney at Law

19 W. Flagler Street

1409 Biscayne Bldg.

Miami, Fla. 33130

‘

ae Pe

Re: No. 24918 — Anthony Nunzio Oddo -Vs-

) United States of America.

Dear Sir:

This is to advise that your motion for stay of issuance of

the mandate has been granted for a period of thirty (30) -

days from November 10, 1967, provided within that time

there is filed with this office the certificate of the Clerk

. of the ae Court that the certiorari ne has been

filed. .

| — You will note that. only thirty (30) days has been granted,

since under Rule 21 of the Supreme Court a petition for

writ of certiorari in a criminal appeal must be filed within

thirty (30) days from the entry of judgment, ve the

time is extended by the Supreme Court.

| Very truly yours,

EDWARD W. WADSWORTH,

CLERK

By G. F. GANUCHEAU

G. F. Ganucheau

Chief Deputy Clerk

/\ge . ;

cc: Messrs. Lloyd G. Bates, Jr.

and Neal R. Sonnett:

| APPENDIX c om

"AMENDMENT V—CAPITAL CRIMES; DOUBLE

‘JEOPARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION FOR PROP-

BRTY Re

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of war or. public danger; nor shall any.

person be subject for the same offense to be twice put in

jeopardy of life or limb; noér shall be compelled in any ~

criminal. case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

‘ use, without just compensation. ~

15 es

APPENDIX D

+f IN THE UNITED STATES COURT OF APPEALS

| pee _FOR THE FIFTH CIRCUIT

;

No. 24918

ANTHONY NUNZIO ODDO, —s—«w™”

= | Appellant, °

-versus-

UNITED STATES OF AMERICA,

- Appellee. .

- Appeal from the United States District Court for =

‘Southern District of Florida

BRIEF OF ae

- MAX LURIE of

LURIE & CAPUANO |

. Attorneys for Appellant

1409 Biscayne Building

Miami, Florida 33130

STATEMENT OF THE CASE

This is an appeal from a judgment of conviction of

the United States District Court, for the Southern Dis-

trict of Florida: —

The following symbol will ‘be used throughout the

‘brief: “T”. for Transcript of Record.

The Appellant, ANTHONY. NUNZIO. ODDO, in a.

trial by jury, was convicted of passing a counterfeit bill

with intent to defraud and in violation of Section 472,

Title 18, U. S. Code, (T-221), from which conviction and —

sentenceof two years in the custody of the United States

Marshal he filed his Notice of Appeal (T-221). The ap-

pellant was indicted by the Federal Grand Jury in and

for the Southern District of Florida on or. about Feb-

ruary 23, 1966. The indictment contained three counts

(T-217-218). Count one charged the appellant with trans-

fer and delivery to another of a counterfeit note for the

'. purpose of passing the same in violation of Section 473;

Title 18, U. $. Code. Counts two and three charged the

appellant with passing counterfeit notes with intent to

defraud in violation of Section 472, Title 18, U. S. Code.

The counterfeit notes in each instance were $10.00 notes.

- The appellant was tried twice. In July of 1966, He

‘ was tried with a jury before the Honorable Emeté C.

Choate, which resulted in a verdict of not guilty as to

Count One and a disagreement as to Count Two (T-219).

As to Count Three, the Court granted appellant’s motion

for judgment of ‘acquittal at the close of the Government’s

case :(T-220).

The second trial as to Count Two was begun on Feb- °

ruary 13, 1967, with a jury before the Honorable Wm, O.

Mehrtens ‘and a verdict of. guilty was brought in by the

jury on February 14, 1967. :

The Government produced at the trial, over objec-

tion of appellant’s counsel, all of the evidence produced

at the first trial as to Counts One and Three, as well as_ -

to Count Two. The Government’s witnesses testified that

on December 7, 1965, the appellant Oddo went into a Pub-

lix Super Market in Hallandale, Florida, together with

another individual named David Esterkes, that: on this

occasion, Oddo, together with Esterkes, went through an

aisle where a cashier by the name of Kamp was in charge.

and that’Oddo made a purchase of a small item and, in:

payment for this. purchase, he tendered a $10.00 bill.

_Esterkes also made a small purchase and he also tendered

a $10.00 bill in payment of same. Oddo then went back

through the store and came back through the next aisle

-with a small purchase and handed a $10.00 bill to a cashier

named Beverly Nichols. The bagboy named Robert Pole

was attracted to this transaction and he took the top

$10.00 bills from the registers of Kamp and Nichols.

He thought there was something funny about the money

so he gave the notes to a Miss Martin, who was one of

the head cashiers, and then the bagboy went out and

_took down the license number of Oddo and Esterkes. The ”

_ police and Secret Service were called, the bills were de-

termined to be counterfeit, and later the appellant Oddo

and Esterkes were apprehended. Esterkes was not tried

-but was used as a Government witness and he testified

that he had spoken t to Oddo with rederence to counterfeit

money.

The Government also produced evidence that the ©

appellant Oddo-was a patient of Dr. Sumner Cohen and

that, some time in the middle of December, 1965, the ap-

pellant Oddo gave to Dr. Cohen some bills which were

placed with other money in his wallet, That on the 17th

of December, the said Dr. Cohen used the money that

was given to him by Oddo and others to purchase jewelry

at the Continental Jewelry Store in the Seybold Building

. in Miami. From there, some of the money was sent to

the First National Bank ‘on the Monday following De-

cember 17, 1965, and the teller observed that one of the

bills was counterfeit. The Government further produced

a witness who was sent by the Continental Jewelry Store

to buy stamps at the Post Office where another note was

detected as counterfeit.and a third note was found in the.

Continental Jewelry Store.

The foregoing, together with all of. the witnesses

- testifying as to their knowledge of the facts, was all of

the testimony adduced by the Government in support of

Ger case. - i

STATEMENT OF THE QUESTIONS INVOLVED —

The Court evel | in sieaitiing into evidence, over ob-

_ jection of counsel, Government’s Exhibits 3, 4 and 5 and

all of the evidence adduced with reference to said exhibits.

ARGUMENT

THE COURT ERRED IN ADMITTING INTO EVI-

DENCE, OVER OBJECTION OF COUNSEL, GOVERN-

MENT’S EXHIBITS 3, 4 AND 5 AND ALL OF THE

EVIDENCE ADDUCED WITH REFERENCE TO ares |

. EXHIBITS.

Prior to the commencement of the actual present-

ment of evidence, a conference was held with the trial

judge and counsel for the appellant and counsel for the

Government, with. reference to the introduction of evi-

dence of other offenses, namely the testimony as to Counts

One and Three which resulted in acquittals for appellant .

in the first trial (T-5-21). The appellant through his

counsel at that time objected to the introduction ‘of said

_ evidence but the Court decided to allow the .evidence.

- (T-21) | : '

The Government presented to the Court, after evi-

dence given by Government’s witnesses Greenbaum (T-89- °

107), Simkovic . (T-105-122), Clayton ‘(T-122-129), Mullins

(T-130-137), Lindsley (T-148-154) and Cohen (T-137-148), _

for- introduction into evidence, Exhibits 3, 4 and 5. These ©

exhibits are $10.00 counterfeit notes allegedly given by .

the appellant Oddo to-Dr. Sumner Cohen on or about De- .

~ cember 16, 1965, which was the subject of Count Three of

the indictment herein and which count resulted in a dis-

charge of the appellant, at the first trial by reason of the

granting of a judgment of acquittal by the trial judge .

at the first trial. | |

Dr. Sumner Cohen testified (T-137): that the appel-

lant Oddo was a patient of his and just prior to Decem-

ber 18 (T-138) Oddo came into his office and put some

money in his pocket as a gift. It was not a fee (T-139).

_. He put this money in his wallet with about - $100.00. he

had in jis wallet.

The following euentions on direct were asked of Dr.

Sumner Cohen and these answers were given (T-140).

Q How much did Mr. Oddo put in your pocket?

A - Well, it was hard to say at the time. I don’t

recall whether it was three or four bills that

he put into my pocket. And on the basis of

my originally having approximately $100 in |

my pocket, I would say it was either $30 or

: $40.

In what form?

THE COURT: . What he is asking you, sir,

werethey $1 bills, $5 bills, $10 bills, $20 bills °

or a combination of them or what? Do you

recall what .denominations?

THE WITNESS: I really cannot, sir.

BY MR. BATES:

What happened to the money you got from

Mr. Oddo? :

Well, I used this to pay bills at the jewelers.

I was then advised several days later that

there was something wrong with. some of

the moneys. that I had given to them, .. .

And by the District Attorney:

And you don’t know what form that was in,

Mr. Oddo?

Well —

MR. LURIE: I object. He already an-

swered the question, Judge.

He then testified that he used the money Oddo gave

him with the other money to pay for some jewelry he pur-

chased’ at the Continental Jewelry Store where Green-

baum was employed and Simkovic was the owner. Dr.

Cohen further testified and identified Exhibits 3, 4 and

5 as bills that he had initialled on January 10, 1966, after

.they were brought to him. by a.Government Agent. On

cross examination (T-146-147), the following questions

were asked by appellant’s counsel and these answers were

given:

21 2

THE COURT: I will. let him answer it if

he can, if he can recall. 7 j

wen, I had been ‘advised sterwerts.

--THE COURT: No, sir, not ‘what you have ;

been advised afterwards. It is what you re-

member yourself;

THE WITNESS: Well, it’s a little vague in

my mind. But I believe they were $10 bills.

“*)- ¢ -

Dr. Cohen’ Pac) ar to those three bills

when they were shown to you on January

10, did you staté to this gentleman here that

those bills were the bills that were in, your

‘wallet when you went to the Continental

Jewelers? Did you identify them as def-°

initely being in your wallet?

I don’t believe I had, no:

As a matter of fact, you don’t know where

these bills came from, edo ‘you?

That’s —

This evidence is what, in the trial Court’s opinion at

the first trial, was not sufficient. to prove that the ap-

pellant had commited the offense charged i in Count Three

* and granted a nicsanaaat of acquittal.

Counsel for appellant is cognizant of the fact that

our courts have consistently held that evidence of prior

offenses can be admitted in evidence to prove knowledge,

intent and a plan of action if the evidence has probative.

value, if the evidence is connected. with the main case -

and not too remote in time, as cited in Pardo vs. United

States, 369 Fed. 2d 922, C.A.L.A. 1966. Counsel for ap-

- pellant is also cognizant of the fact that this Honorable

Court, in the case of Pilcher vs. United States, reported

at 113 Rep. 248, held that even a finding of not guilty of

a previous offense could be admitted in evidence for the

purpose of proving intent and knowledge.

The~Courts have also held at times that even sub-

sequent offenses can be admitted to prove intent and

knowledge as cited in Myers vs. United States, 377 Fed.

2d 412. However, in all of the cases which I have exam-

ined, the proof showed a definite commission of a prior

or similar offense in order to show that the Defendant

had knowledge and intent to commit the offense in the

main case. In this case, the proof that the appellant.gave

Exhibits, 3, 4 and 5 to Dr. Cohen is definitely questionable

38 shown by his testimony. The jury, in order to find

‘intent from this testimony, would have to decide that the

appellant was guilty of committing the offense as

-charged in Count Three of the indictment, which the

Court had already decided that the testimony of Dr.

Cohen and ail of the other witnesses who also testified at

‘the first trial, was insufficient to prove that the appel-

* 23

lant had passed Exhibits 3, 4 and 5 and with intent to

defraud. This evidence was supposedly introduced for the

purpose of asking the’jury to determine whether he was

guilty of committing that offense in the Third Count..

The only person who could definitely state that. ap-

pellant had given Exhibits 3, 4 and 5 to Dr. Cohen was

_ Dr. Cohen, and he definitely- states that he does not know

if Exhibits 3, 4 and 5 were ever in his wallet (T. 147). The

Court, in United States vs. Byrd, 352 Fed. 2d 570, C.A.N Ys

190, held as sane:

by the trial court of evidence of. Byrd’s activi-

ties in connection with the auditing of the

Sandberg tax return. The Government’ offered

_it as a part of its main case for the purpose of °

showing criminal intent. .A vigorous objection

was made by the defense but the court ad-—

mitted it. The admissibility of this kind of evi-

dence is ‘a matter in which the trial judge

should be allowed a wide range of discretion.’

United States v. Feldman, 136 F.2d 394, 399

(2 Cir.).- The exercise of discretion must be

addressed to a balancing of the probative value

of the proffered evidence, on the one hand,

against its prejudicial. character, on the other.

The probative value is measured by the extent

to which the evidence of prior criminal activi-

ties, other than a conviction, closely- related in

time and subject matter, tends to establish that

the accused committed the criminal act charged

in the indictment knowingly or with criminal

intent or tends to negative the claim that the

OT Pe a a ee Te - wore . PES RSME RENE LEELA TORII IIE LD

= . > - . Ais SA thd aint 0d iO

acts were committed innocently or through

mistake or ‘misunderstanding.

“Tt is generally recognized that there can be

no complete assurance that the jury even under

the best of instructions will strictly confine the

use of this kind .of evidence to the issue of

‘knowledge. and intent and wholly put out of

their minds the .implication that the accused,

having committed the prior. similar criminal.

act, probably committed the one with which he

is actually charged. The court in its colloquy

with defense counsel conceded that prejudice

of this sort would result to Byrd in letting in

the evidence.

“From the quality of proof standpoint for

proving knowledge and intent, its probative

value was largely cumulative. The evidence

-eame from the mouth of the same witness, .-

Kaufman, who testified to the occurrences in

the first two counts. If the jury believed his

testimony as to those counts, the relating of

’ the Sandberg incident added little, if anything, _

had disbelieved Kaufman’s testimony about the

first two cqunts, it is not very. likely they

would have believed his story about the Sand-

berg tax audit. |

“Another factor to be considered is whether

the Government -was faced with a real neces-

sity which required it to offer the evidence in

its main case. The defense had not, either in

its claims or-the statement of facts which it

would seek to prove, ‘sharpened’ the issue of

intent by asserting that the act charged was

done innocently. or by accident or mistake.

McCormick, Evidence, §157 at 331 (1954); Vol.

1 Wharton’s Criminal .Evidence, §237 at 528

12th ed. (1955). Nor did the Government suffer

_ from a lack of evidence of intent. Kaufman’s

testimony relating to the first two counts fur-

nished ample evidence of knowledge and intent,

of the same kind and quality as shown by his

testimony concerning the Sandberg tax returns.

There was therefore no pressing necessity that

evidence of that prior occasion be offered on

the Government’s main case. United States v.

Ross, 321 F.2d 61, 67 (2nd Cir. 1963). It is, of

course, conceivable. that in some cases proof

of the offenses charged would contain little

or nothing from which an inference of guilty

intent could be drawn. In such a case a trial

judge would, in the exercise of his discretion,

be justified in admitting as part of the Gov-

ernment’s case, proof of a prior similar offense

to show knowledge or intent. For the present

purpose of this discussion it is enough to point |

out that the scope of discretion does not include

_every offer of a prior similar offense which

may contribute something to a showing of in-

tent in the Government’s main. case. Where the

prejudice is substantial and the probative

value, through the nature of the evidence or

the lack.of any real necessity for it, is slight,

its admission at that stage may be held to be

an abuse of discretion. Under such circum-

stances the better practice would be to sustain

the objection to the offer on the Government’s

main case without prejudice to its re-offer in

rebuttal, if then warranted.” —

Counsel contends that the allowance. of »evidence

| of the testimony of witnesses. Greenbaum, Simkovic,

Clayton, Mullins, Lindsley and Cohen, was an abuse of

discretion (T-89-148). The testimony was not necessary

to prove the Government’s main case and was highly

prejudicial.

In fact; the Court on Srameenyt, _ 188, stated

as follows: ;

“T probably would have been ‘of the opinion

that the Government hadn’t proven that offense

beyond a reasonable doubt sufficient to ene it

to the jury.”

_ And further stated that this evidence is admissible

solely for the purpose of goirig to the intent and motive

and state of mind if they find first that he passed the

“money. In other words, he is, allowing them to deter-

mine whether he actually committed that offense as dis-

closed through the witnesses Simkovic, Clayton, Lindsley

ond Cohen.

CONCLUSION

For the foregoing ‘reasons it is respectfully sub- .

mitted that the appellant.is entitled to judgment of

acquittal and that if any judgment of acquittal is not

granted, the appellant should, be given a new trial.

MAX LURIE of

‘LURIE & CAPUANO

Attorneys for Appellant

1409 Biscayne Building

Miami, Florida 33130

af?

| CBRITFICATE OF SERVICE

STATE OF FLORIDA

COUNTY OF DADE ]

MAX LURIE, being first duly sworn, deposes and

says: That he has this.______ day of December, 1967,

the following: WILLIAM MEADOWS, United States

District Attorney, Federal Building, Miami, Florida.

MAX LURIE

Sworn to and subscribed before me this

of December, 1967. —

day

Notary Public, State of Florida

My commission expires:

so APPENDIX “E”

@ UNITED STATES COURT OF APPEALS

| FOR THE FIFTH CIRCUIT.

Gaile an 1967:

No. 24918

D. C. Docket No.. 66-93-CR-WM

ANTHONY NUNZIO. ODDO, °

“©

| Appellant, .

"versus

vara STATES OF AMERICA, —

- Appellee. i

- Appeal tiie the United States District Court for the |

Southern District of Florida.

| Before POPE,* TUTTLE and CLAYTON, Circuit Judges.

JUDGMENT .

This cause came .on to be heard on the transcript of .

the record from the Unitéd States District Court for the

- Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

_ of the said District Court in this cause be, and the same

. . is-hereby, affirmed. —

' June 18, 1968

“*Of the Ninth Circuit, -

sitting by designation.

Issued as Mandate:

- a

: -

. is

3 bg

, .

- .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.