United States v. Samuel Hyman

deals, personal er’s FBI which the later COFFEY, Before CUDAHY and Circuit became aware. GIBSON, Judges, Senior Circuit Kramer contacted defendant on June Judge.* 28, 1982, to see if the defendant was inter- buying ested in three coils of GIBSON, FLOYD R. Senior Circuit steel. The steel had been stolen two Judge. men, Alfonsi, Havard and and was stored defendant, Hyman, appeals public Sam in a warehouse in Indiana. The de- conspiracy from a criminal conviction for: negotiated agreed and Kramer receive, possess, dispose of, price. and trans- on a The defendant then made sev- port goods in interstate commerce attempt stolen eral calls in an to resell the steel. commerce;1 possession from interstate willing buyer of He found a in Kenneth Mes- goods shipments;2 senger, Co., stolen from interstate Century Steel in Chicago transport Heights, and the interstate of stolen Illinois. The defendant contacted goods.3 shipping company arranged to have * Gibson, Floyd The Honorable R. Senior Circuit 2. § 18 U.S.C. 659. Judge, Appeals United States Court of for the Circuit, sitting by designation. Eighth 3. § 18 U.S.C. 2314. U.S.C. 371. § evidence, If transported from the warehouse there are conflicts it is in buyer Illinois. Indiana your duty conflicts, to reconcile the you can, theory that each witness shipment Century arrived When the at you testified to the truth. If cannot

Steel, Messenger phoned the defendant testimony, so reconcile the then it Messenger going him that inform your it was not within reject province the steel because as it had to determine whom represented. per- After considerable been whom believe and will disbe- defendant, Messenger suasion weigh lieve. You should the evidence steel, agreed keep but a substan- light credit to the tially price. lower your experience own and observations express dismay called Kramer to his and to ordinary affairs life. renegotiate price steel. After a this instruc- visit to defendant’s office and conversa- tion amounts to an instruction every thieves, agreed tions with the Kramer presumed witness is to have testified truth- Later, accept price lower steel. fully, and is error it because is within the sent an Kramer invoice for province sole jury to the determine wit- renegotiated price, steel at the the and the credibility. ness “presumption A paid by check. of truth” defendant Kramer disapproved instruction has by been several eventually FBI The uncovered this trans- Pincione, circuits. United v. 565 and, help, action with Kramer’s adduced 404, (6th Cir.1977); United States 405 support sufficient evidence to a criminal Gray, v. 632, 464 F.2d 638-39 Cir. against defendant. indictment the At 1972); United Birmingham, States v. dispute defendant did not that the steel 447 the stolen, 1313, bought (10th Cir.1971); been or he had had 1315-16 United the steel. issue resold The at trial Boone, 659, v. 661, (3rd 401 F.2d 662 cert, whether the defendant knew the steel was nom., Cir.1968), denied sub Jackson bought been stolen when he it. On States, v. United 933, 394 U.S. 89 S.Ct. appeal, the raised defendant several issues 1205, (1969); 22 L.Ed.2d 463 McMillen v. for our consideration. States, 29, (1st 386 F.2d 35-36 Cir. cert, denied, 1967), 1031, U.S. 390 88 S.Ct. Jury II. Instructions. 1424, United States 20 L.Ed.2d 288 “presumption The truth” cert, a. instruction. Bilotti, v. 649, (2d Cir.), 380 F.2d denied, 389 U.S. 88 S.Ct. During charge jury, the to the the (1967). However, judge upon L.Ed.2d gave No. close trial instruction 26 which provided inspection as precedent circuit4, follows: of the in this Isaacs, (1968), In gave L.Ed.2d the trial court the (7th Cir.), following 417 U.S. 94 S.Ct. instruction: (1974), 41 L.Ed.2d 1146 you assumption If find the of truthfulness gave following the instruction: respect to all who are witnesses sworn to witness, outweighed any you If there are in the be conflicts statements of as to witnesses, your duty different it is to reconcile the of that witness such can, you presumes every credibility any, you it if for the law if as think it deserves. truth, you, added.) (Emphasis Finally, the witness sworn to tell but if in United States v. them, Dichiarinte, 1967), cannot reconcile the law makes the Cir. nom., judges credibility States, sole and exclusive of the denied sub Mastro v. United witnesses, weight given the to and the be their 88 S.Ct. (1968), testimony. gave following the trial court the instruc- added.) Knaack, (Emphasis In United States v. tion: (7th Cir.), Every truth, presumed speak witness is to the (1969), presumption may outweighed by the but the be testifies, gave trial court an instruction on the by witness credi- manner in which [the witness] witness, is, bility, assumption pre- which adverted an to or character of the sumption testimony given the truth. character witnesses tell In Unit- contra- evidence____ Quinn, dictory pre- ed States If find the cert, sumption outweighed to be truthfulness as consideration, we do not has not met

and after careful this “presump- think that No. 26 is a standard. instruction effect tion of truth” instruction. In In Edgington v. United jury if there irreconcila- was told that were (1896), 41 L.Ed. 467 evidence, up it ble in the then was conflicts Supreme Court reversed criminal con Thus, jury to decide who believe. viction because the trial court had instruct left the determination of jury disregard ed the that it was free to credibility jury and there witness character defendant’s evidence unless the presumption charge was no truthfulness prove government had failed to its case jury. to the Id., 364-66, convincingly. 17 S.Ct. at thrust of Edgington important 73-74. evidence. b. The instruction on character jury was that be told to consider the At two wit- presented trial the defendant evidence along with all the other character regarding honesty, nesses his who testified deciding when evidence whether good general. integrity, and character proved guilt a defendant’s instructions, During the conference on' beyond reasonable doubt. attorney requested good character when con- of] [Evidence proposed court’s instruction on this evi- sidered connection with the other evi- changed dence be conform to cir- case, may generate dence a reason- pattern jury cuit’s No. 3.15. doubt. The may able circumstances judge agreed change The trial to make the reputation that an such established but, by what we must assume over- character, good relevant sight, failed do so.5 issue, would alone create a reasonable doubt, although argues The defendant the trial without it the other evi- convincing. proposed court’s to dence would be failure make the change violated Fed.R.Crim.P. which Id., Here, at 17 S.Ct. at 74. requires the to inform of its court counsel the court’s instruction met mandate set proposed prior argument, closing action to Edgington, met the Edging- forth in denegrated importance the his char- of ton mandate as it has adopted in been this seriously acter evidence so reversal circuit. See United v. Donnelly, required. disagree. We (7th‘Cir.1950). As we have noted recently, technical The trial court’s instruction also require violations of Rule 30 upon reversal was with consistent variations the preju approved by where the defendant can show actual this court in Baker, dice. United Picketts, other cases. See United States v. — cert, denied, -, 104 S.Ct. 79 L.Ed.2d 709 witness, any you good the testimo- whom said that the has defendant a ny any, credibility, honesty, integrity that witness such as reputation for and truthful- where, you think it deserves. community in the ness he lives and added.) (Emphasis Along you works. with all the other evidence indicate, emphases As the the in these fault heard, you may take [should] have into con- language pertaining instructions the was direct- what sideration believe about the defend- ly assumption presumption. to an or a That honesty, integrity, ant’s and truthfulness when language appear does not in the instruction be- decide whether Further, that, fore us. we note while doubt, beyond proved, a reasonable disapproved given instructions in these defendant committed the crime. Evidence of cases, the were instructions not sufficient bases integrity honesty, the defendant's and truth- for reversal. may alone fulness create reasonable doubt instruction, government proved given, whether 5. The as the de- the defendant’s brackets, proposed change committed in the crime. as follows: Jury See Fed.Crim. Instructions Seventh testimony You have heard the Thomas Cir., (1980). Warmack, 3.15 Boissey and Kenneth both of Ming, regarding testimony, States v. Kramer’s the fact Cir.), committing that Kramer had admitted (1972). number crimes for he had which not given Finally, when a trial court has prosecuted. been substantially accurate instruction which that the trial court committed reversible adequately subjects covers addressed by failing requests. error to honor these by proposed change instruction or in the disagree. We instruction, will not the court be reversed object The defendant failed to to the language for failure to use the exact ten trial court’s refusal of the tendered instruc dered counsel. United States v. Zarat testimony. tion on Kramer’s He therefore tini, Cir.), preserve failed the issue for review on appeal. Fed.R. Crim.P. 30. L.Ed.2d reject We the defendant’s other ar immunity c. The instruction. Havard, gument. Alfonsi, Longanetti government presented immunity; did not they several wit- receive received trial, nesses at most of exchange whom had been reduced sentences in for their theft, Further, involved testimony. somehow interstate purpose of includ transportation, ing and sale of steel. One wit- these three in immunity ness, Larry Massey, had dealt with the would be alert the jury to consider their unrelated, a matter but simi- testimonies great with “caution and care.” lar, charge for which he was This tried. admonition was included in the in Massey granted immunity use gave ex- struction the trial court on the testi change against testimony for his the de- monies of Finally, these three men. de fendant. The two men who stolen the fense development counsel’s of the credibil Alfonsi, steel in issue ity Havard and during issue cross-examination and clos thief, Longanetti, plead- and another Lester ing argument adequately alerted the guilty charges reflecting ed necessary their in- caution weighing steel, volvement with black market and re- witnesses. trial court exchange ceived reduced sentences in not failing Havard, for did err to include Alfonsi, their Longanetti testimonies. Kramer was not immunity charged any granted Xheka, crime nor 987; immu- instruction. 704 F.2d at Unit nity, although paid he a informant Watson, ed States v. 1205 (7th Cir.1980). the FBI. At requested d. The defendant’s “theory of defense” Havard, Alfonsi,

trial court include instruction. Longanetti immunity instruction the prepared Massey’s court regarding had tes- para- tendered a three timony. requested The graph defendant also that instruction which contained his theo- include, the trial court in ry its instruction of defense.6 The trial court included provided 6. The tendered instruction as follows: If find that the has failed prove Hyman’s theory beyond It is Sam reasonable of case that at doubt that Sam purchased Hyman the time that he and re-sold three knew that the steel was stolen at the coils of bought steel on June 28 and June time that he and re-sold the -steel on he believed William L. Kramer to June 28 and June must legitimate businessman and he had no Hyman guilty. find Sam not knowledge that the steel was stolen. It is Any knowledge Hyman may which Sam Hyman’s theory Sam further of the case that acquired have after June 28 June government, the main witness for the William origin regarding the of the steel is im- Kramer, Havard, L. David S. Thomas J. Alfon- your material determination of whether si, Longanetti Larry Massey Lester are Hyman knowledge Sam had that the steel was making charges against pur- false him for the bought stolen at the time he and re-sold the pose avoiding reducing punishment of steel June 28 and on June their own crimes. paragraphs one in the final III. of these Evidence of Other Crimes. theory, re- instruction on the defendant’s objection, the defendant's Over fusing the two on the that other basis Larry Massey testify permitted adequately by points were other covered on he had contacted the that two occasions argues instructions. The defendant defendant, sell him steel. offering to stolen agree this action with the was error. We bought any from The defendant never steel trial court. Massey. However, Massey testified ways he and defendant discussed A have the defendant is entitled to manipulate in make theory paperwork order to jury instructed on his or her of supported by defense when the defense is steel look purchases legitimate. stolen the law and evidence. United States v. admission Martin-Trigona, 684 F.2d Cir. was reversible error be- 1982); Bastone, relevant; it was cause: not violated Fed. Cir.1975), it was R.Evid. because introduced solely purpose establishing for the (1976). However, previous as our discus crime; propensity to commit noted, sion has a trial court is not bound to and because the trial court failed make precisely an the same findings written under Fed.R.Evid. proposed. form as it has been regarding prejudicial effect versus the probative value of the evidence. paragraphs

Here the deleted merely from the instruction restated the In v. Feinberg, United States requirements government prove (7th Cir.), beyond guilt the defendant’s a reasonable L.Ed.2d doubt and that the find the must de (1976), this court held that of a evidence knew the was stolen when he prior prior criminal act is admissible if: the it, bought and return sold order to enough enough act is similar and close verdict, guilty adequately in other stated relevant; time to be the evidence of the portions “theory instructions. Where of a act prior convincing; is clear and proba surplus- of defense” are mere value of outweighs tive the evidence age, it is not error for the trial court to prejudice; risk issue to which them the final delete from instruction. Cina, 853, 863, disputed by the evidence is addressed — U.S.-, Massey’s testimony defendant. satisfies requirements. each these given by formity particular final instruction the court is as therewith occa- sion____ follows: ____Evidence Hyman’s theory (b) crimes, It is Sam that at the case wrongs, of other purchased the time he three coils resold prove acts is or not admissible to the charac- 29, of on June June 28 and person of a ter in order to show that he acted 1982, he believed William L. Kramer to be a however, conformity may, It therewith. legitimate and he no businessman knowl- purposes, proof admissible for other such as edge that was is the steel stolen. It further motive, intent, opportunity, preparation, of theory Hyman's Sam of case that the the main plan, knowledge, identity, or mis- absence of government, witnesses for the Kramer, William L. take or accident. Havard, Alphonsi David S. Thomas J. [sic], Longanetti Larry Massey Lester are provides 8. 403 Rule as follows: making charges against pur- the false avoiding him for relevant, Although may evidence be exclud- pose reducing punishment of or probative if substantially ed its is out- value their own crimes. weighed by danger prejudice, the of unfair issues, misleading confusion of the or the provides pertinent part Rule 404 7. as follows: ____Evidence jury, delay, or considerations of undue (a) person’s of a character or time, presentation waste of needless a trait of his character is not admissible for cumulative evidence. purpose proving the that he acted in con-

913 Massey findings acts to which testified oc- written to this The effect. It true ' curred within a few months the criminal have encouraged we trial courts to the acts for which defendant was tried. specific findings make regarding the bal- Thus, temporal requirement the satis- was ancing prejudicial of the effect versus the Berkwitt, fied. United States v. F.2d 619 probative value of evidence. United (7th 649, Cir.1980); United States v. 655 DeJohn, States v. 638 F.2d 1053 Zeidman, (7th Cir.1976). 540 F.2d 319 Cir.1981); Dolliole, at F.2d 106. How- testimony, Massey’s the defendant ever, evidentiary rulings a trial court’s are purchasing was interested in stolen steel if “within its sound discretion and must be paperwork could be falsified to make the Falco, great accorded deference.” legitimate, transaction look also satisfied Serlin, quoting, F.2d at 707 F.2d at similarity requirement. the Further, repeatedly we have refused require a mechanical recitation of Rule Evidence other criminal transac formula, record, 403’s prerequi- on the as a tendency tions is relevant it has admitting site to evidence under Rule the make existence of an element of the Price, 404(b). United v. 617 F.2d charged probable crime more than it would (7th Cir.1979); Dolliole, 597 F.2d be without such evidence. United States quoting, United States v. Sangrey, at Falco, (7th Cir.1984), v. F.2d (9th Cir.1978). Where, Fairchild, quoting, United States v. whole, from the record appears as it (7th Cir.1975), de 188-89 the judge weighed trial adequately pro- nied, against prejudicial bative value effect (1976). L.Ed.2d 186 Evidence that the de proffered evidence before its admis- previously up way had come with a sion, we conclude that the demands of illegal purchases appear legal to make on Id. Rule -403 have been met. paper probable made it more not that than paperwork presented case, In this sub proof the FBI as of his innocence this mitted a brief the court’s consideration Further, case was false. admission issue, judge argu the trial heard the was relevant issue evidence counsel, prof ments of heard the court knowledge, permissible basis jury’s presence, fered out of the See 404(b). for admission under Rule and the court took short recess before it Serlin, motion in limine previous its overruled (7th Cir.1983); Miroff, v. United States excluding the evidence. The trial court complied substantially the require with 928,100 ments of Rule 403. (1980). Finally, because the issue at trial Massey’s testimony also satisfies was whether the defendant knew the steel convincing” requirement. “clear and it, bought stolen when he clear impeach Massey’s defendant failed testi- “dispute” requirement of the Fein- direct, mony. We have held that the unim- berg test was satisfied also. Thus, peached testimony of a witness constitutes by admitting Massey’s court did not err convincing clear and evidence that the acts testimony into evidence. actually to which witness testified oc- Berkwitt, 655; curred. Dolliole, IV. Excluded Evidence. Cir.), 442 charged The indictment the defend L.Ed.2d 318 purchase, possession, ant trans However, argues portation, galvanized the defendant and sale of coils of prejudicial proffered trial

that effect this evidence steel. At for value, probative its which outweighed admission evidence reflected market specific, prices types several different making erred not steel. Second, portion complex. The trial court admitted that pur- evidence which advertised the contingent upon sale coils chase was whether he galvanized steel, por- Third, buyer. but excluded find a could it was the de- tion of the evidence which dealt with the arranged fendant who interstate sale types of other of steel. The defendant transportation goods. of the stolen Final- that the trial court erred exclud- ly, support there was sufficient evidence to ing argument this evidence. The no the inference that the defendant collab- merit. Because the excluded evidence did orated with Kramer to make the transac- steel, not deal with the coils of tions, transaction, part and his look i.e., substantially steel similar legal paper. in issue at the failed to meet facts, Given these we think that the de- requirement threshold of relevance under fendant’s characterization of himself as a Fed.R.Evid. 401, properly was exclud- simple purchaser goods of stolen is incor- See J. Weinstein & M. ed. Wein- Berger, Greer, rect. See United v. States stein’s Evidence 401-67, 401- H401[10] denied, 1064, § (1982); Wigmore, Evidence J. 463 at 93 S.Ct. 35 L.Ed.2d 590 (1979). Skillman, (1973); v. (8th Cir.), 547-48 Conspiracy V. The Count. 404 U.S. 92 S.Ct. 30 L.Ed.2d 63 contends his convic- (1971). government’s characterization conspiracy tion for must be reversed. This of the defendant’s involvement as that of a solely contention argument rests on the “middleman” is more accurate. We think proved only that the there was sufficient evidence to establish simple purchaser defendant was a of stolen buyer-seller more than a arrange- mere goods, and conspired not that he had to ment, and thus sup- sufficient evidence to buy, possess, transport stolen steel. port jury’s verdict on conspiracy Mancillas, In United States v. this court count. stated as follows: conspiracy requires Because the crime of CUDAHY, Judge concurring: Circuit a concert of among action two more I agree do not majority’s with the failure persons for a purpose, common the mere to hold that instruction No. 26 should not agreement person buy one what given. have been urges person sell, agrees another standing jury, resolving conflicts in the alone does support conspiracy not con- evidence, apply “theory that each viction. witness has testified to the truth.” This cert may, cases, in some seriously 439 U.S. 99 S.Ct. jury’s invade the significantly function and (1978), quoting, Ford, presumption erode the of innocence. In (7th Cir.1963); accord United case, however, totality of the cir- Braico, v. persuades cumstances me that the instruc- Cir.), tion did not affect the outcome of the trial. United States Thus, I would hold that it was error to Varelli, 1969), Cir. instruction, but that in this case the nom., cert denied sub Saletko v. United error was harmless. Affirmed. L.Ed.2d 581 Mancillas,

However, as in we

think guilty the defendant was of more just

than simple agreement buy stolen First,

goods. negotiations between the

defendant, Kramer, Messenger were

Case Details

Case Name: United States v. Samuel Hyman

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 26, 1984

Citation: 741 F.2d 906

Docket Number: 83-2474

Court Abbreviation: 7th Cir.