United States v. DeCicco

• Citation: 435 F.2d 478
• Decision Date: 16 November 1970
• Docket Number: Dockets 34011,and 34097.,762,and 763,No. 761,34096,761
• Parties: The UNITED STATES of America, Appellee, v. Russell DeCICCO, Rene DeCicco, Louis Markus and Gregory Parness, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

435 F.2d 478 (1970)

The UNITED STATES of America, Appellee, v. Russell DeCICCO, Rene DeCicco, Louis Markus and Gregory Parness, Appellants.

Nos. 761, 762, and 763, Dockets 34011, 34096, and 34097.

United States Court of Appeals, Second Circuit.

Argued May 7, 1970.

Decided November 16, 1970.

John Tarrant, Dept. of Justice; H. Kenneth Schroeder, Jr., U. S. Atty., for appellee.

F. Bernard Hamsher, Buffalo, N. Y., for Russell and Rene DeCicco.

Charles Patrick Bridge, Buffalo, N. Y., for Louis Markus.

Harold J. Boreanaz, Buffalo, N. Y., for Gregory Parness.

Before LUMBARD, Chief Judge, WATERMAN, Circuit Judge, and JAMESON, District Judge.^*

WATERMAN, Circuit Judge:

Russell DeCicco, his wife Rene, Louis Markus, and Gregory Parness were tried jointly before Judge Henderson and a jury in the United States District Court for the Western District of New York for conspiring to transport stolen goods in interstate commerce in violation of 18 U.S.C. § 2314. The jury found each defendant guilty, and defendants appeal. For reasons to be elaborated below we reverse the judgments of conviction and remand for a new trial.

The following facts were brought out at trial. Sometime during the night of August 20-21, 1968, the home of Dr. and Mrs. T. Edward Hanley in Bradford, Pennsylvania, was burglarized of 14 masterpiece paintings and two bronze statuettes valued at approximately $1,300,000.¹ The Government's principal witness, the brother of Gregory Parness, Paul Parness, who was named in the indictment as a co-conspirator but was not indicted as a codefendant, unfolded the story of appellants' involvement with the art theft and the efforts to sell the stolen art objects. Paul Parness testified that approximately two days prior to the burglary he met with Russell DeCicco at DeCicco's home in Buffalo, New York, at which time DeCicco told Parness he planned "to make a big score and that he thought he would get some valuable items out of the burglary." On August 21, shortly after the Hanley theft, Parness again talked with DeCicco, this time in the presence of Parness's brother Gregory, and of Louis Markus. DeCicco told Paul Parness he had successfully burglarized a home and made off with 14 paintings and two statues. At this conference DeCicco and Paul Parness agreed that the latter would try to find a buyer for the stolen works of art.

Unfortunately for the DeCiccos and the other defendants, Paul Parness led a double life, for he had been, and was during the time of these events, a paid informer for the FBI and other law enforcement agencies. After the August 21 meeting and his conversation with Russell DeCicco, Paul Parness called FBI agent Griffin and told him about it. A plan to trap DeCicco and company was then worked out, and later in the week Paul Parness approached DeCicco and reported to him that a friend in Chicago was interested in the paintings. A price of $300,000 was subsequently agreed upon and a meeting with the fictitious buyer was tentatively set for August 29 at 6:00 p. m. at a Buffalo motel. Earlier in the day of the 29th, agent Griffin instructed Paul Parness to inform DeCicco that the meeting to exchange the art works would have to be postponed a day because the Chicago parties were having difficulty liquidating negotiable securities to raise the necessary cash. Parness then went to the DeCicco home and was told by DeCicco's wife Rene that her husband, Paul's brother Gregory, and Louis Markus had already left for Pennsylvania to bring back the paintings. She "became upset" at hearing of the delay, saying a motel room, where the paintings were to be placed, had been paid for and her husband was probably on his way back with the paintings, but she indicated she might be able to reach him by phone. Parness drove Rene to a public telephone booth in the Buffalo area and she made her call. Rene then said to Parness that she had reached her husband and had told him (by way of a code) to postpone bringing the paintings back to Buffalo until the following day. The next day, August 30, Russell DeCicco and Markus drove to Paul Parness's home in Hamburg, New York. They had returned from their trip to Pennsylvania without the paintings and they related to Paul Parness what had happened. DeCicco told Paul Parness that he, Gregory Parness, and Markus had driven to the home of a John Burke who was responsible for storing the stolen art works. Upon their arrival, Burke informed them that the local police had been "shadowing" him, but, despite that, he would pick up the paintings and would deliver them. During Burke's absence, which lasted about three hours, the trio became suspicious. When Burke returned he reported that the police were still following him and that he had to abandon his intention of picking up the paintings, but he then told DeCicco where to find the shack where the stolen property was hidden. DeCicco, Gregory Parness, and Markus started for the shack but decided to abandon the art objects when they spotted several police cars parked behind a restaurant near the pickup area. About 15 miles down the road their car was stopped by the Pennsylvania State Police; the three men were questioned briefly and their identifications checked. They were then permitted to proceed — which they promptly did — back to Buffalo and to New York State. This August 30 conversation was concluded by DeCicco's telling Paul Parness that he was sure Burke had set him up by notifying the police and consequently that he and his wife "intended to do physical harm to Burke or his family."²

Through the testimony of another FBI agent, Francis Connors, the Government established that during the investigation of the Hanley art theft Connors had received information³ that prompted him to contact John Burke, the harborer of the stolen property. As a result of this contact Burke took Connors and another agent early in the morning of August 29 to the shack where the 14 paintings and two statuettes were concealed. The agents removed the art works to a motel in Bradford, Pennsylvania, examined them there, and made an inventory of them. After this had been accomplished Connors was notified by Burke at about 11:00 a. m. that DeCicco, Marcus, and Gregory Parness had appeared at Burke's home to transport the paintings to Buffalo. Sensing an opportunity for a "redhanded" capture, Connors and his companion agent returned the art works to the shack and set up surveillance. As previously related, however, DeCicco and his companions were tipped off that something had gone awry and, abandoning their efforts to recover the stolen property, headed back to New York State. Two months later, on October 24, 1968, Mr. and Mrs. DeCicco and Gregory Parness were arrested and charged. Louis Markus voluntarily surrendered himself to the FBI in Buffalo, New York, the following day.

We now turn to a discussion of the issues raised for adjudication upon this appeal.

I.

In an effort to establish that Russell DeCicco and Gregory Parness had previously indulged in activity involving stolen art works, the Government's witness Paul Parness testified over objection that at a time shortly before the occurrence of the events of this case he had arranged with DeCicco for the latter to sell to an insurance company two Utrillo paintings that had been stolen in Buffalo. He testified that he had been informed by his brother Gregory that the paintings were available for sale, and that DeCicco later admitted to him that DeCicco had stolen the paintings and had turned them over to Gregory Parness to sell. An insurance agent corroborated Parness's story by testifying that he had transferred the recovery money, $6,700, to Paul Parness, that shortly after the paintings were recovered he saw DeCicco go into the restaurant where the money was passed, and that he had also been told by Paul Parness that DeCicco had called about the Utrillo transaction.

The court was careful to instruct the jury that this prior but similar act of misconduct was only germane to a resolution of the question of whether, at the time "an accused" acted in the case at trial he acted wilfully, "and not because of mistake or accident or other innocent reason."⁴

FBI agent Griffin also testified, over objection:

I participated myself, personally, in recovering approximately a half million dollars in paintings, art objects, furs, and so forth, which were being fenced by Russell DeCicco and Gregory Parness.

And again a cautionary instruction was given to the jury.⁵

Such evidence tended to show that Russell DeCicco and Gregory Parness were in the business of stealing art treasures and thereafter dealing in them. The court endeavored to tell the jury that the probative force of the prior misconduct was to be considered by them only on the issue of whether the accused had a specific intent to commit the crime alleged in the indictment. Inasmuch as DeCicco's and Gregory Parness's former "fencing" activities had occurred in Buffalo, New York, the Government was also seeking to have the jury infer that DeCicco and Parness intended, consistent with the prior design, to transport the stolen art treasures back to New York from Pennsylvania, thereby satisfying themselves that the interstate element of the conspiracy charged in the indictment had been proven.

The court did not limit the inferences drawable from this evidence to be applicable only to defendants Russell DeCicco and Parness, but the inferences could be drawn with reference to "an accused." Little discussion is needed to demonstrate that prior similar acts of misconduct performed by one person cannot be used to infer guilty intent of another person who is not shown to be in any way involved in the prior misconduct, unless it be under a "birds of a feather" theory of justice. Guilt, however, cannot be inferred merely by association. In any event, we conclude that the prejudice engendered by the admission into evidence of the prior acts of misconduct,...