United States v. Gimelstob, 72-1622 to 72-1625.

• Decision Date: 21 February 1973
• Docket Number: No. 72-1622 to 72-1625.,72-1622 to 72-1625.
• Citation: 475 F.2d 157
• Parties: UNITED STATES of America v. Herbert Martin GIMELSTOB, Appellant in No. 72-1625, et al. Appeal of Victor FRIEDLANDER, in No. 72-1622. Appeal of Leonard SHERMAN, in No. 72-1623. Appeal of Joseph TREMARCO, in No. 72-1624.
• Court: U.S. Court of Appeals — Third Circuit

475 F.2d 157 (1973)

UNITED STATES of America v. Herbert Martin GIMELSTOB, Appellant in No. 72-1625, et al. Appeal of Victor FRIEDLANDER, in No. 72-1622 Appeal of Leonard SHERMAN, in No. 72-1623 Appeal of Joseph TREMARCO, in No. 72-1624.

Nos. 72-1622 to 72-1625.

United States Court of Appeals, Third Circuit.

Argued December 7, 1972.

Decided February 21, 1973.

COPYRIGHT MATERIAL OMITTED

Michael A. Querques, Querques, Isles & Weissbard, Orange, N. J., for Friedlander.

Yale Manoff, Weinberg & Manoff, Springfield, N. J., for Sherman.

Myron P. Maurer, Maurer & Maurer, Newark, N. J., for Tremarco.

Raymond A. Brown, Brown, Vogelman, Morris & Ashley, Jersey City, N. J., for Gimelstob.

Herbert J. Stern, U. S. Atty., John J. Barry, James D. Fornari, Richard S. Zackin, Melvin Greenberg, William A. Carpenter, Asst. U. S. Attys., Newark, N. J., for appellee.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

The central element in this case was a conspiracy to steal certain tin ingots from a warehouse in Port Newark, New Jersey, in violation of 18 U.S.C. § 659.

There were four counts to an indictment which named appellants and other defendants not revelant to this case. The charges relating to appellants are as follows: all four appellants were charged with violating 18 U.S.C. § 659 by conspiring to take, steal, and carry away goods in foreign commerce with the intent to convert these goods to their own use (Count I). They were also charged with violating § 659 by possessing goods which they knew to be stolen (Count III).¹ Appellants Gimelstob and Tremarco alone were charged with assaulting, opposing, impeding and interfering with an FBI agent in violation of 18 U.S.C. § 111 (Count IV). After the district court granted appellant Gimbelstob's motion for a judgment of acquittal as to the first violation of § 659, a jury found all appellants guilty as charged. Appellants present a plethora of purported errors, none of which require reversal. Having rejected them en masse, we will proceed to reject them seriatim. Facts will be developed when necessary.

I. THE SEIZURE OF THE STOLEN TIN

All four appellants contend that the FBI's seizure of the stolen tin was improper because the affidavit supporting the search warrant was legally insufficient. The warrant in question met the standards set out by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). Aguilar set up a two-pronged test to determine the sufficiency of a warrant which is based on tips from a confidential informer: (1) the warrant must show that the informer is credible, and (2) some of the underlying circumstances giving rise to the informer's conclusions must be present. In this case, the warrant alleged that the informer relied upon had previously disclosed information leading to at least five convictions; and FBI surveillance provided sufficient corroboration for the informer's conclusions. See Spinelli v. United States, supra at 417-418, 84 S.Ct. 1509. United States ex rel. Henderson v. Mazurkiewicz, 443 F.2d 1135 (3d Cir. 1971); United States v. Singleton, 439 F.2d 381 (3d Cir. 1971); United States ex rel. Kislin v. State of New Jersey, 429 F.2d 950 (3d Cir. 1970). Only a probability of criminal activity is necessary for there to be probable cause, see, e.g., Spinelli v. United States, supra, 393 U.S. at 419, 84 S.Ct. 1509, and here the affidavit for the search warrant showed such a probability.

II. IMPROPER JOINDER

Appellants Sherman and Friedlander argue that it was improper under Rule 8 of the Federal Rules of Criminal Procedure to join the charges against appellants Tremarco and Gimelstob for assaulting an FBI agent with the charges against them on the conspiracy counts. In the alternative, they argue that if joinder was permissible, a severance under Rule 14, Fed.R.Crim. Proc., should have been granted. There is no merit in these arguments. The assault on the FBI agent was clearly related to the conspiracy charges, and Rule 8(b), Fed.R.Crim.Proc., does not require that each defendant be named in each count, so long as the offenses are related. See 8 Moore's Federal Practice, § 8.06 2 (Cipes ed. 1972). I Wright, Federal Practice and Procedure, § 144 (1969).

Nor was it improper for the district court to deny appellants' motion for severance under Rule 14. This motion is addressed to the discretion of the trial court, and appellants have not demonstrated the type of prejudice necessary for us to say that the district court abused its discretion. See 8 Moore's Federal Practice, supra § 14.02 1. I Wright, Federal Practice and Procedure, supra § 227.

III. TESTIMONY OF THREATS TO A WITNESS

A government witness who had been involved in the conspiracy testified that he had been threatened with harm by appellant Friedlander if he were to talk. The witness testified that Friedlander did not state the exact nature of the harm that would occur, but that the witness understood, from previous conversations with Friedlander, that Friedlander meant that he would be killed. In fact, an attempt was made on the life of the witness, allegedly by appellant Tremarco. However, this attempt was not disclosed to the jury.

Appellants Friedlander, Sherman, and Tremarco agree that testimony of the threat itself was properly admitted, but contend that the district court should not have allowed the witness to explain the nature of the harm that would come to him. On the basis of this testimony and an aborted question,² they further argue that the jury was able to infer that the attempt on the life of the witness had been made. They present no authority for this argument.

There is no merit in the contention. The statements as to the kind of harm were relevant to the precise nature of the threats and also tended to establish Friedlander's guilt. This testimony plus the unfinished question do not lead to the inference that appellants claim that the jury made. Additionally, at that time the district court instructed the jury to disregard the fragment of the question asked and in his jury charge gave a general instruction for them to disregard everything he had previously excluded.

IV. ADMISSIBILITY OF A CARD SEIZED FROM TREMARCO

FBI agents seized a card from appellant Tremarco's wallet upon his arrest. This card contained various phone numbers, including two unlisted numbers of appellant Gimelstob. Tremarco now claims that this card was improperly seized because the government failed to establish that at the time of its seizure there was a probability that it could be evidence leading to a conviction or an apprehension of others. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Admission of the card was not error. It was logical for the FBI to believe that the phone numbers on the card could disclose further participants in the conspiracy or show a connection between Tremarco and the other defendants. And furthermore, this argument seems "much ado about nothing" since the card is of absolute minimal importance. Its lack of significance combined with the weight of the government's evidence leads us to the conclusion that any error in its admission would clearly be harmless beyond a reasonable doubt under the Supreme Court's test in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

V. "MUG SHOT" OF TREMARCO

Appellant Tremarco contends that it was improper for the district court to allow a "mug shot" (screened to hide identifying marks) into evidence against him. He claims that this impermissibly placed his prior criminal record before the jury. He relied on Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966), but that case is distinguishable from his.³ Our task is to decide whether the district court properly determined that the probative value of the mug shot outweighed whatever prejudicial effects that it had. E. g., Hines v. United States, 470 F.2d 225 (3d Cir. 1972).

In Barnes, there was an in-court identification. No mention of a photographic identification was made on direct examination. Defense counsel chose not to argue to the court that the identification procedures violated Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969), but, instead, he cross-examined the witness concerning a pretrial photographic identification. While "photographs" were mentioned freely, there was no description of them as "mug shots."

On redirect examination, the government attorney introduced into evidence two photographs of Barnes which the witness had viewed. While one was a normal snapshot, another was a mug shot. There was tape over the prison numbers on the photograph, and the trial judge emphasized that it covered something detrimental by commenting to the jury that he feared that one of them might inadvertently remove it and see the markings. The court held that the introduction of this "mug shot" improperly placed the defendant's prior criminal record before the jury even though it was the defense who had first brought out the photographic identification. The court emphasized that the prosecutor could have buttressed the testimony of his witness on redirect examination by introducing solely the snapshot and thus avoiding the prejudice inherent in introducing the mug shot. Furthermore, it does not appear that the defense inquiry in Barnes focused on the appearance of the appellant in pictures which the witness was shown. It instead concentrated on the fact that the identifying witness had been shown only pictures of appellant.

There are similarities to Barnes in this case. An FBI agent made an in-court identification of appellant on direct...