*4 See, was abused this case. GURFEIN, Circuit Judge, dissenting: Dwyer, United States v. also, I respectfully dissent. 1976). This is a case involving several unusual It follows that the district court act independent elements. There was no cor- denying appellant ed properly right roboration of delivery goods of the to Haridopolos. to cross-examine jury appellant Rosenwasser four years earlier. 4. Nor we unmindful of the are fact that Rosen- Compare Transcript tenants. Trial at 416-19 wasser was convicted on uncorroborated Transcript Trial 311-18. testimony of a convicted felon. Indeed, acquittal Rosenwasser’s on the con- Payden, 5. In we held that defendant had not charge spiracy jury indicates that the adhered by prejudiced been the introduction of evidence to the court’s instructions. Had con- Vernon, against his co-defendant since trial liquor against sidered senwasser, stolen evidence Ro- charge properly court’s not to consider had cautioned the incongru- such a verdict would be against Payden. such evidence case, however, ous. In that the evidence admitted charge Vernon was relevant to a totally charges against was unrelated to appellant deprived 8. Nor was of his sixth Payden. amendment to confrontation. We decline accept to Rosenwasser’s that “if the 6. Rosenwasser testified that Allicino’s brother , arguably . witness . was witness Tony operator the elevator at Pacific him, he should have been allowed to Street, “[taking] script effect, responsibilities and that his included Appellant’s (em- cross-examine.” Brief at 22 building.” care of the Trial Tran- phasis original). testified, Appellant 404-05. also been recovered commonly building’s all area used of the goods found in one-third of the goods.3 of the stolen “They” Nor solely required conviction rested to possession. his the rest of the load hijackers, of the testimony of one at Rosenwasser’s factory hijackers on the until the Fleischer. found second Paul buyer. It agreed paid thieves would be appel- $2300 Allicino, testimony, According to his lant and his associates and that Allicino co-defendant, purchase to the entire agreed money would deliver the to the house of one Arrangements were made deliver load. hijackers. He testified that Allicino following goods to Allicino the stolen money night deliver the did morning, factory March at a Monday hijackers and that was divided Brooklyn, building on Pacific Street group’s participants. Two others were then several tenants. On that building with samples of the property shown date, with five of the confed- Fleischer met buyer sent to find for the rest. According to a erates, building all six went Fleischer, the next morning the entire they where met with 2395 Pacific Street picked up the group rest of the load at brother, opera- the elevator and his Allicino Rosenwasser’s and took it to the house of building.1 Allicino helped for the tor paid one Broverman and were goods from the truck and unload the stolen goods. bring appellant’s them to first floor fac- freight elevator. When tory by use FBI Ernest Day Haridopolos was floor, they reached Allicino in- testify that on March *5 appellant Rosenwasser (a troduced after the date substantive pleaded, count group “partner.” pleaded as his Rosenwasser im- conspiracy after had end- proclaimed that he “did mediately ed), not want he arrested Allicino for having commit- argument ensued between the load.” An a similar act and ted that he charged had Rosenwasser, the thieves and possession one of Allicino with of an interstate hijacked which the thief threatened to kill Rosen- shipment liquor. of Not content wasser if he did not “take the load.”2 At with possessed Allicino had altercation, shipment the conclusion of Fleischer liquor, stolen prosecutor testified, finally agreed buy Rosenwasser had him tell the arrest of 6, supra. yelled out, 1. See note “A. Peters ‘I’ll kill that Jew you bastard if don’t take the load.’ prosecution’s purchase you say ‘they,’ you 2. The version of the When what do “Q. goods stereotype was not the usual mean? eager of an receiver. “A. Peters and Rosenwasser. testified; said, recall, you spe- What was if can “Q. Fleischer cifically? you When first met Mr. Rosenwasser “Q. there, you they have a in the loft did conversation “A. It was decided that would take him? one-third of the load— Objection. “A. No. “Mr. Wallach: anyone Did have a conversation with “Q. “The Court: Yes. your presence? Mr. Rosenwasser Try to remember— “Q. Rocky talking “A. to Allicino and Ro- “A. Allicino said he would take one-third senwasser. of the load. Mastriangelo say Mr. What did “Q. say? What did Mr. Rosenwasser “Q. your presence, did Mr. what Allicino and Mr. agreed. “A. He say Rosenwasser in return? say? What did Peters “Q. brought up “A. After the load was Mr. they “A. But we will take one-third have — Rosenwasser didn’t want the load. they the rest of the load in say? What did he “Q. (Tr. 100-02). drop.” their “A. He didn’t want it. 3. Fleischer indicated that when he told Allicino say? What did he “Q. stolen, garments that the everybody. it was not in the “A. told it He presence appellant, jury might reply? but the infer What was his “Q. circumstances, believed, An broke out Fleischer “A. between Pe- passed knowledge ters and Rosenwasser. that Allicino on his own say? appellant. What did Charlie Peters “Q. followed a Allicino surveillance of Allicino nied. At the opening trial, counsel judge as he unloaded the stolen asked whether he had to renew Street, street level floor of 2395 Pacific the motion for severance when the United building Brooklyn, Attorney opened in which Rosenwas- to the jury or ser had his loft on the first floor whether and in sufficient it was brought to the which Allicino’s brother was the court’s elevator attention. The judge respond did not operator. directly That address had already been whether counsel motion, but, had to renew his effect, testified to as the location of business, ruled that a new as well motion was not necessary as that of other when he asked counsel to remind him tenants. after prosecution’s opening statement to tell producing addition to character wit- “that he refers only to the defend- nesses, appellant himself took the witness ant Mr. Allicino and does not refer to Mr. Appellant stand. denied involvement Rosenwasser, if as and when is re- charged. in the crimes He conceded that he quired in that event.” Sportswear, was the owner of Trekon locat- point At this was informed that Street, ed at 2395 Pacific Brooklyn. He pleaded Allicino had guilty to a violation of knowing Allicino and his family 18 U.S.C. possession § unlawful of li- years, 6,1972, that on March quor valued at (a less than misdemean- $100 crime, he date and Allicino were or). Appellant friends. swore that he had never garments.4 received Four em- The trial judge knew that Rosenwasser ployees Rosenwasser who worked for sought a severance or exclusion of the in March they him 1972 testified that never crime,” “other and that he was ready to observed an incident such as that described renew the motion at the trial. The court stipulated Fleischer. It was that “if also knew that since pleaded Allicino had approximately another employees 15 or 20 connection with the similar of- factory called, they would testi- fense, a record of conviction was available *6 fy in a similar manner.” Appellant also to establish the commission of the offense. explicitly knowing denied that stolen liquor There was no need for oral testimony about ground had been stored on the floor of the the facts involved the “other crime.”5 building during March 1972. was, prosecution The nevertheless, per- The Government had indicated before tri- to introduce mitted through Agent Harido- al that it prove intended to a subsequent polos, who arrested Allicino for the “other by defendant crime Allicino.- crime,” Counsel for the whole story of Allicino’s in- Rosenwasser moved for a severance on that quite volvement separate crime which before ground trial. The motion was de- the court recognized required separate possible prompted It is that fear of Evidence, violence proposition decide, we need not —a appellant part to consent to take of the load. non-hearsay testimony —the of the with may prompted That same fear have him to personal knowledge of the offense could have incident, which, deny course, he had no allowing been admitted without him to describe hand, testimony to do. On the other liquor the movement of the in to the Pacific hijacker may false, including of the have been building photographs with Street in order to appellant’s unwillingness the embellishment of spell “against out a similar offense Allicino.” threat, appellant may and the coercive position does not take the Government denying have told the truth in the whole inci- liquor that such details as the address of the dent. drop proved details modus 5. Even if the official record of convictions of operandi; solely the evidence was received on Allicino were to be held inadmissible because reminded, the issue of intent. We are more- bargain plea (not was to a misdemeanor over, that even relevant evidence be ex- punishable by imprisonment crime in excess of probative substantially “if its cluded value is year) ground one and excluded on the it outweighed by danger prejudice.” of unfair hearsay does not come within the limited ex- Federal Rule Evidence 403. ception 803(27'' of Rule of the Federal Rules of 812 was, fact, instruction to connected with
cautionary
this crime.
Yet,
being
opening
was not
offered
in its
that it
effect
Govern-
story
Haridopolos
ment stressed that
liquor
Rosenwasser.
was
“exactly
address,
to tell ended with the stolen
found at
same
exactly
was
literally at co-defendant Rosenwas-
whiskey
exactly
the same location in
the same build-
ing through
This
was accom-
doorstep.
exactly
doorway
the same
ser’s
as
showing
taken
photographs
the stolen sweaters and
that’s Mr. Rosen-
panied
hallway
building
building,
wasser’s
and if
exactly
that’s not
business;
place
appellant’s
me to it.”
was also
hold
See Tr. at 19.
This
[sic]
objec-
hardly
were admitted over
seems fair
photographs
play.
of the uncontested convic-
In the face
tion.
juncture
At this
no
instruction could
theft,
to admit the
Allicino for this
tion of
suspicious without
indeed,
was,
gild
lily.
photographs
proof,
very
guarded
evil
against by the
is, therefore,
sum,
an unusual case. Gen
rules of evidence.
This
the circumstan-
of a similar offense is
when evidence
tial evidence was not
erally
strong enough to
multiple
appellant
in a
trial it is
show that
committed the other
offense,
was,
abundantly
that the co-defendant who
clear
paradoxically, strong
could not have been in
prejudice
enough
grave suspicion
to cast
upon
claims
him.6
the similar offense.
In such cir
liquor,
For the stolen
as we
seen,
volved
cumstances,
cautionary
we have held a
in
very
laid at his
doorstep, at the street level
(See,
g.,
sufficient.
e.
Unit
very
to be
floor in the
building
struction
where he rented a
Papadakis,
Prejudice
upstairs.
ed
loft
was inevitable.
denied,
Cir.), cert.
spill-over
S.Ct. The
effect is graphically shown in
(1975) (“clearly
813
Glover,
right
is,
v.
tional
of
supra;
essence,
see United States
506
confrontation
a
291,
1974).
(2d
spill-
right
If the
F.2d
298
Cir.
to cross-examine.
Alaska,
Davis v.
308,
1105,
94
likely
prejudicial
over is
to be
other
415 U.S.
S.Ct.
question. Agent Haridopolos’ reversing a conviction for clearly implicated Rosenwasser. Notwith- conspiracy transport goods, standing instructions, precautionary *8 spite of a instruction: therefore, Haridopolos ought properly to be “against” considered a witness Rosenwasser “Little discussion is needed to demon- for purposes. prior confrontation constitu- strate that similar acts of miscon- noted, Ironically, Advisory postal inspector 8. As the on Rules Committee least the who 9. purpose implicating amendment “The 1966 to testified to the oral [in confession Bru- procedure whereby subject provide a Rule is to the ton was on the to 14] stand cross-examina- stand, possible prejudice agent can be was on issue of resolved on tion. Here the FBI but Bruton, supra, subject See be to the motion for severance.” even he was held not to cross-ex- 1620. 391 U.S. at amination. cannot help reflecting justice One by person one cannot be performed duct become tends to bogged intent of another in precedents down used to infer at the time they any way announced no not shown to be in who is person expressed more the view the authors on misconduct, unless it prior involved later, an issue surfaces than legis- theory ‘birds of a feather’ be under actually thought lature about an unintend- Guilt, however, cannot in- justice. in a statute. I gap predict ed with unhappy merely by association.” ferred majority opinion, confidence will severe, was more for Here the prejudice in all manner of be cited circumstances as by prosecutor’s draw- jury, affected establishing goes that anything so far as in his state- opening inference ing very multiple defendant trials are concerned. In ment, gnaw- been left with the must have view, that is for my good not a balanced appellant might had ing suspicion that system of and fair criminal There are law. offense, do with the something to in which important few areas it is as for atmosphere raising “a thereby eye this court a watchful as on the guilt by innuendo.” See United States admissibility of similar offenses in a case DeCicco, n.5.10 supra, involving more single than a defendant. evidence, independent aside is only The lack of For this case a variation of the testimony appellant problem. linking Fleischer’s Bruton from crime, fortifies the conclusion that I would reverse the conviction and order prejudice would have from serious resulted trial. a new case, way prosecution presented its way the and from the trial denied court
appellant’s preju- efforts minimize the
dice.11
I have written at length, some because I case, this only by
am troubled not appellant subject-
unfairness to which
ed, because, with due respect, affirm- the majority
ance of what concedes “is a question,
close argument is represents, me, without
not merit” appellate
abdication of our true
function.
Zane,
prejudiced
In United States v.