*3 BECKER, Before HUNTER and Circuit physical Almost all evidence the *, Judge. District Judges, and HOFFMAN re- government against introduced Hans sulted Bauman’s The F.B.I. arrest. THE COURT OPINION OF obtained warrants to search both Bauman’s HOFFMAN, Judge. District apartment carrying and a briefcase he was The at the time of arrest. briefcase I. INTRODUCTION. scanner, $4,000 in police $100 contained a trial in Following jury the United bills, ultimately as other items used as well Dis- District for Western States Court in Hans’ as evidence trial. Bauman had Pennsylvania, Hans Leslie William trict $4,000 person, another in cash on his as robbery. trial convicted of bank The containing references well as a notebook years a total of judge sentenced Hans to Following in their the Marine Bank Erie. Hans imprisonment on the two counts. apartment, search Bauman’s the F.B.I. court, citing to this appeals the conviction items, variety of seized a some them in supposed errors five Hans, against admitted into some evidence, admitting allowing testi- items of in this seizure were the not. Included five possible with mony about Hans’ connection for iden- windbreakers which were marked Michigan, allowing robberies in bank tification, into but never admitted evidence. inspect items its deliber- tried; ap- he Bauman himself was never that had not been introduced into ations parently committed suicide sometime after evidence. proceed- government The then arrest. Although objections Hans’ are some of friend, girl Grzy- try ed to Bauman’s Pearl merit, feel that the trial without we bowski, robbery. Grzybowski (1) in allowing: erred twenty-five convicted and sentenced to about, certain items which had been talked part years imprisonment for her evidence, (2) into an not introduced robbery. sentencing judge The held out a agent testify in a manner that possibility of a reduction in sentence she implied that Hans had committed bank rob- cooperated government and testi- (3) a witness to link Detroit and beries against person fied the third involved the alleged future plans Hans to to commit three after her robbery. Almost months feel that the first robberies. Because we sentencing, Grzybowski finally informed prejudiced right a fair errors two partici- the F.B.I. that Hans was the third trial, we reverse his conviction and remand Although yet her had not pant. sentence trial. for a new reduced at the time of the Grzybowski testified that she understood II. FACTUAL AND PROCEDURAL in a “sub- cooperation would result BACKGROUND. years” being taken off stantial number 28,1980, October three armed individ- On her sentence. masks, uals, wearing windbreak- halloween Grzybowski, gloves, a branch of the Based ers and robbed information Erie, secured an indictment of Pennsylvania, getting Marine Bank * Hoffman, sitting by Judge, Virginia, designation. trict Senior Honorable Walter E. Court for the Eastern Dis- United States District §§ 2113(a) He concedes that these violating 18 U.S.C. items had some Hans for (d) (assault during (bank degree robbery) relevance to the corrobo- robbery). Hans had Grzybowski’s testimony, of a bank rated commission but he con- November, day jury early trial in a three tends that this minimal relevance is far physical evidence the 1981. Most outweighed by prejudicial effect on the of.the against government introduced jury. from Bauman. been seized misapplied Rule 403 of the Federal Rules testimony provided direct evidence by ruling of Evidence admissible items in the of Hans’ involvement seized from Bauman. evidence to government also introduced in this circuit is clear: a law show that Hans had wired has broad discretion to evaluate $1,000 for when she was first arrested. bail probative whether the value of relevant counts, convicted Hans on both substantially outweighed by evidence “is years sentenced Hans to 25 danger prejudice, of unfair confusion of *4 prison. issues, misleading jury.” or Fed.R. 403; Clifford, Evid. see United States v. III. ADMISSIBILITY OF ITEMS 86, (3d Cir.1983). 704 F.2d Absent a 89 FROM BAUMAN. SEIZED discretion, showing appel clear of abuse of trial, objected intro- Before Hans to the judge’s a trial late courts will not disturb against duction into evidence him of the ruling under Rule 403. States v. United items seized from Bauman. Introduced (3d Cir.1983). 762 Dalfonso, F.2d scanner, against police Hans were the judge clearly The district did not denominations, $4,000 in and Bau- $100 in allowing abuse his discretion most of the man’s notebook. Hans contended that evidence seized from Bauman to be intro items were irrelevant to the these both against duced into evidence Hans. Be guilt highly question prejudicial. of his cause these items tended to corroborate judge objections
The trial all the overruled Grzybowski’s testimony, they were rele except against the ones directed the intro- vant. The Federal Rules define “relevant gun bullet-proof a duction of and several “any tendency evidence” as evidence with judge gun The ruled the vests. inadmissi- any to make the existence of fact____more [material] clearly type it ble because was not of the probable.” or less Fed.R. robbers, carried and he ruled the added). (emphasis Evid. 401 Under this vests inadmissible because there was no standard, everything seized from Bauman evidence that the had worn vests. robbers was relevant. Among judge the items the ruled admis- Moreover, it from the record that is clear sible were the five windbreakers seized judge pro- evaluated all the the district apartment. from Bauman’s These were presented whether it posed evidence to see actually ad- identified but never offered or danger prejudice of unfair to Hans. The mitted into evidence. its delibera- evidence, ultimately excluded some judge tions, inspect to asked wind- handgun bullet-proof such as the and the this, objected arguing to breakers. vests, danger prejudice of the to because the trial and the was over circumstances, these we can- Hans. Under long had rested its ease. over- say the trial abused his ruled the and allowed by admitting these other items discretion jackets. inspect to into evidence. Actually A. The Items Admitted Into B. The Windbreakers.
Evidence.
hearing,
district
pre-trial
At a
argues
everything
seized
were admissi-
question
to the
ruled
windbreakers
was irrelevant
Bauman
hearing
testified at that
participated
ble.
whether
pres-
they
not received in the
and that its
although
were similar
wore,
ence, prejudicial,
will vitiate the verdict.”
the windbreakers
ones
robbers
863, quoting Dallago
ones
in the rob-
F.2d at
v.
not the
used
United
were
fact
States,
(D.C.Cir.1969).
itself,
the wind-
F.2d
bery. During the
identification, The error
not from the inadmissibili-
marked for
comes
breakers were
evidence,
they
ty
never actu-
of the
but from the
for some reason
were
properly
into
Because
reliance on evidence which had not
ally introduced
evidence.
evidence,
not admitted into
admitted.
had no need to elicit testimo-
lawyer
government
also
Grzybowski that
ny from
these windbreak-
because,
in ef
did not err
ones the rob-
ers were different
fect,
government
permitting
he was
jury began
after
de-
wore. Soon
bers
reopen
its case and move
liberations,
inspect
asking
it
a note
sent
support
position,
into evidence. To
Over Hans’ strenuous
the windbreakers.
primarily Gormley
government relies
re-
objections,
judge granted
(4th Cir.1948).
States,
In urging uphold us the trial it the case before this between now judge’s ruling point, govern on this the court. were not cumber- first that the windbreakers judge ment committed some, in fact in the courtroom government no error. The cites a number trial; cases, during parties never including Joseph, support its entire of stipulated error that these were indeed the wind- judge contention that a commits worn; if unad and the only he allows to examine breakers robbers gave cautionary instruc- previously which he had trial never mitted evidence tion. The trial should have dealt or whose admissibili ruled inadmissible allowing request by govern- argument This over with the ty he has not ruled. reopen language Joseph: “the ment to its case and the intro- of move looks clear This would kept free of evidence duction the windbreakers. jury room must be given opportunity Hans the to recall IV. have ADMISSIBILITY OF EVIDENCE testify Grzybowski so she could OF OTHER CRIMES by were not those worn AGAINST HANS. robbers. A. Hans’ Conviction Interstate clearly therefore erred in Transportation Forged Securi- allowing jurors inspect the wind ties. that, government argues breakers. July, Hans was convicted of erred, the error was § (interstate violation of 18 U.S.C. jackets harmless because in did not “[t]he transportation securities). forged Hold- any way directly implicate appellant ing this falsi, to be a crimen the trial robbery.” Appellee’s brief at 27. This allowed the to use this convic- argument verges disingenuous. on the impeach tion to Hans on cross-examination. all, only possible First of reason could have had to the wind The Federal Rules of Evidence allow im compare breakers would have been to them peachment pri witnesses evidence of photographs to those in the bank or ways. convictions two different If robbers. the conviction punishable was for a crime had by imprisonment death or in excess of one windbreakers, constantly (a stressed the both year felony), judge may then the trial agents admit it if he probative determines that the employees. Additionally, bank’s admitting value of the evidence of convic although prosecutor conceded outweighs prejudicial tion its effect to the opening remarks that there was no evi- 609(a)(1). If, defendant. Fed.R.Evid. dence that the windbreakers had been used hand, the other the crime involves “dishon robbery, by noting he continued statement,” esty or false if the would “look at the robbers and has no discretion and must admit it even if pictures you, you’ll I have for ... find it was a misdemeanor. Fed.R.Evid. wearing they’re windbreakers similar to 609(a)(2). Normally such evidence is ad type implica- we recovered.” The clear missible if either the or the *6 statement, govern- tion of this and of the prison release witness’ occurred with ment’s use of the windbreakers at 609(b). years in 10 of the trial. Fed.R.Evid. was that these were indeed the robbers’ argues that evidence of his
windbreakers, though even transportation interstate conviction was in support introduced no evidence to that con- 609(a)(1) (2). either or admissible under He clusion. contends, all, first of circumstances, Under these we cannot prove that he convicted of a failed to was declare that the error did not affect sub- felony. argument This is frivolous. Sec rights. stantial interest in these anyone tion 2314 states that convicted un marginal items of at best relevance indi- $10,000 may up that section be fined to der cates that the considered the wind- imprisoned up years for to 10 or or both. important linking breakers to be evidence properly court The trial therefore conclud robbery. judge Hans to the The trial ed that Hans had been convicted of a felo should at least have afforded defense ny- opportunity informing of of Grzybowski’s opinion Having that that these were not determined both this convic- had worn.1 tion and one for assault with intent to robbers Although questioned the defense could have in a Such would future Grzybowski category put on the windbreakers on cross-exam- have the windbreakers in the same ination, prejudiced vests, the de- this could have bullet-proof by judge excluded as the fense case because she would have testified that highly prejudicial. as irrelevant and bought the windbreakers for use Bauman had felonies, honesty im- robbery makes it admissible for which
commit armed applied the bal v. properly peachment purposes.” trial then United States 609(a)(1) Jackson, (8th Cir.1982). ancing mandates that Rule F.2d test probative whether the agree Eighth order to determine and find We with the Circuit outweighed their the convictions value of error this issue. no prejudicial effect to Hans. Government of Bedford, Virgin Islands McCarthy’s Testimony Agent B. F.B.I. (3d Cir.1982). The trial con Linking Hans to Bank Robberies trans although the interstate cluded Michigan. admissible, the assault portation issue was case-in-chief, government’s to was not. He considered conviction Agent McCarthy prosecutor questioned charge rob be too of bank similar concerning how and Hans be- bery potentially prejudicial and therefore suspects. objected came that Hans. the fact Given questioning, line that of overruled. weighed probative of e xplicitly value McCarthy prosecutor When the asked how danger that against
the convictions Hans, came to focus on McCar- Bureau unfairly prejudice their introduction would replied: thy Hans, no find abuse discretion we therefore decline to reverse the basis identity After Nor- learned the we 609(a)(1). Rule man and that he was from Mich- Bauman igan, agents I talked to some our Nevertheless, if interstate Detroit, Michigan I ran office. transportation conviction was inadmissible robbery them the de- MO the 609(a)(1),it un- under be would admissible robbers, scription of the other bank recently (a)(2). der This court held that a anyone if that asked them court has no discretion to exclude district logically suspect fit as might area who prior of a conviction under Rule in this matter. 609(a)(2). 703 F.2d Wong, United States (3d Cir.1983). If a has witness objected at a dishonesty involving convicted of crime prosecutor sidebar the told the statement, may impeached or he false be McCarthy the Detroit would state conviction, through the even it not a agents up likely with Hans as a sus- came felony. initially overruling pect. Hans’ ob- After jection denying motion a mis- Thus, once deter trial, the sustained dishonesty mines or crime involves McCarthy’s “last statement” and told statement, false evidence of disregard it. automatically that crime admissi becomes impeachment purposes. ble for cautionary *7 instruction was insufficient because of the
For the to have convicted highly prejudicial impact McCarthy’s of tes have transportation, of interstate it must timony. government, on The the other guilty “forged him transporting believed hand, testimony “vague dismisses the as knowing securities ... to have same § way indicating character” and no that forged.” The been ... 18 U.S.C. 2314. Hans had requirement on the ever been convicted bank rob focused bery. Appellee’s govern brief knowledge and held that trans at 36. The interstate argues McCarthy’s ment also portation is crimen He therefore that testimo falsi. ny 404(b) ruled that the could use was admissible under Rule association, impeach i.e., prove Hans on show cross-exami that Bau only exam prior circuit which has man and Hans knew one another nation. question robbery has this concluded commission bank ined transportation charged. n. forged securi which Hans is now Id. at interstate arguments “encompasses precisely government’s kind of dis- 10. Both the are ties gloss over the both on cross-examination and on re-direct. attempt to disingenuous and testimony, testimo- prejudicial nature of the this she alluded to evidence seriously anything McCarthy’s testimony ny. which the trial had ruled inadmissi- it Stripped ble, to its essentials was but weak. as well as to a lie detector test she was (three operandi cases, on the modus supposedly waiting based to take. In both masks, wearing halloween armed robbers denied Hans’ motion for a ranging gloves dark and windbreakers and Grzybowski’s mistrial. Hans 5'9"), the Detroit height from 5'5" testimony prejudicial unre- was both immediately up come F.B.I. could almost sponsive. Leslie Hans. prime suspect, i.e.
with
though McCarthy never named
Even
A. The
Vests.
Bullet-Proof
only
reasonable inference
jury,
by Hans’ attor-
cross-examination
juror
draw from
that a reasonable
could
ney, Grzybowski on several occasions vol-
Hans was well-
testimony
was that
bullet-proof
unteered information about
the Detroit
as a bank robber to
known
flak-jackets.
did
vests
Hans’
not move to strike her answers
Moreover,
testimony
finally
cross-examination. He
moved for a
404(b),
under Rule
it still
were admissible
only
mistrial after she had not
mentioned
balancing requirements of
has to meet the
re-direct,
again during
the vests
but also
high
is this
Rule 403. Not
testified that Bauman had discussed with
government had no
ly prejudicial, but the
using
them in a future bank
to introduce it to show that Bauman
need
attorney put
grounds
Hans’
forward two
prosecu
and Hans knew each other.
support
Grzybowski’s
his motion: that
an-
Hans,
already established that
tion had
unresponsive
swers were
girl
were
Grzybowski and Hans’
friend
prejudiced
would
Hans because
F.B.I. arrested
present when the Detroit
see them as evidence of future crimes and
McCarthy’s testimony was there
Bauman.
likely
be more
to convict.
cumulative,
fore
and excludable on
reaction
judge’s
The trial
immediate
ground as well.
lawyers
objection,
he told
to sustain the
imagine
Because it is difficult to
“[wje’ll leave the record where it is.”
prejudicial
more
than McCar
recalled,
jurors
Once
thy’s implication
known to
that Hans was
to them that he was
gave no indication
professional bank
police
the Detroit
as a
sustaining
objections. Shortly after
robber,
judge’s
we feel that the trial
error
testimony,
Grzybowski’s
occurred when he failed to sustain Hans’
and,
excused the
rested.
objections
questioning
line of
to the entire
followed, he
during the conference that
especially
from the outset. This is
true
prior ruling
reversed
light
judge’s ruling excluding all
testimony. He concluded that
state-
conviction for assault
evidence of Hans’
spontaneous
respon-
were both
ments
robbery. The
intent to commit armed
they were therefore admissi-
sive and that
judge ruled that inadmissible because
ble.
charged in
was too similar to that
offense
Nevertheless,
this case.
as
result
The motion for mistrial was
McCarthy’s testimony,
was left the
mentioned
until the vests had been
made
*8
impression
like
Hans’ attor
probably
by Grzybowski
indelible
several times.
Bauman,
professional
bringing Grzybowski’s
was a
bank
in
tes
ney
erred
not
when she
timony
judge’s
attention
robber.
vests,
that the
mentioned the
so
first
THE GRZYBOWSKI TESTIMONY.
Y.
not mention them
could instruct her to
Nevertheless,
defense coun
again.
when
ground
appeal concerns
final
for
Hans’
objection,
the
testimony,
ultimately
sel
made an
Grzybowski’s
of Pearl
some
trial;
testimony
only through inad-
in- breakers before
struck the
and
should have
vertance were the windbreakers not actual-
disregard
How-
jurors to
it.
structed the
outset,
ly
very
pros-
At the
the
introduced.
ever,
held that Hans is
because we have
(in
jury
opening
ecutor
the
his
trial,
informed
need
to a new
we
entitled
otherwise
remarks)
that
the windbreakers
seized
question whether the trial
the
not reach
from Bauman were
to the ones
similar
granting
in
a mistrial on
judge erred
not
robbery,
worn in the
but that there
no
testimony.
of this
the basis
evidence that
were the same wind-
testimony at
breakers. There was
trial
Test.
B. The Lie Detector
about the windbreakers seized
Bau-
presentation
the
of Hans’
Thus,
opportu-
man.
had
reason and
defense,
Grzybowski
recalled
nity
to elicit
possible
a
question her
reduction
about
that
not
the seized windbreakers were
the
response
question
to a
in her sentence.
garments
used
the
any
she had
“under
whether
about
Citing
Ong,
United States v.
impact of her
standing” about the
testimo
(2d Cir.1976),
denied,
cert.
429 U.S.
sentence, Grzy
of her
ny on the reduction
814,
(1977),
97 S.Ct.
L.Ed.2d
replied
waiting to take
that she was
bowski
majority
the
holds that
the lower court
moved
a mis
lie detector test. Hans
the
committed reversible error because
ad
grounds
that
answer was
mission of the windbreakers “affect[ed]
unresponsive.
denied that
rights” of
substantial
defendant.
motion,
unresponsive
an
in essence because
Whether the court’s conduct “affects sub
not,
prejudice,
some
is
absent
answer
rights” depends upon the effect
stantial
Based on
for mistrial.
grounds
challenged
conduct
ver
argue prejudice and on the rela
failure to
dict,
inquiry
requires
scrutiny
an
which
testimony,
find
insignificance of the
we
tive
particular
facts of the case at issue
judge committed no error on this
that the
procedural
context of
asserted
point.
Ong,
error.
let-proof vests was not reversible error.
Grzybowski first mentioned the bullet-
proof vests cross-examination. Her responsive to counsel’s
question concerning length of time that
she, together Bauman and Hans had been apartment. repeated
in Bauman’s She
reference to the vests Hans’ attor- when
ney, directing Grzybowski rather than
limit specific length her answer to a
time, her, pressed you twice “Can answer
my question?” object- first
ed to references when the
government attempted to elicit further tes-
timony about the vests on re-direct. The
court sustained that but let the
cross-examination stand. I
would find that the district court ruled
properly point on this as well.
Accordingly, I would affirm the convic-
tion of Hans. CORPORATION,
GENERAL MOTORS 83-3418,
Petitioner in No.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY William Ruckelshaus, Administrator, Respon-
dents. COMPANY,
FORD MOTOR 83-3432,
Petitioner in No.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and William Ruckelshaus, Respondents.
D. 83-3418, Nos. 83-3432. (argued), Louis E. Tosi William L. Pat- Appeals, United States Court of berg, Toledo, Ohio, Henry, Fuller & Third Circuit. Motors; Hollis, General Julius J. General Argued May Staff, Legal Corp., Motors General Motors Detroit, Mich., of counsel. 27, 1984. Decided June (argued), Douglas
Norman W. Bernstein Cutler, Co., Dearborn, Mich., Ford Motor Jr., Ellis, Smith, T. Hun- Turner William B.