U.S. v. Barrett, 75-1293

• Decision Date: 22 June 1976
• Docket Number: No. 75-1293,75-1293
• Citation: 539 F.2d 244
• Parties: 1 Fed. R. Evid. Serv. 1154 UNITED STATES of America, Appellee, v. Arthur BARRETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 244

539 F.2d 244

1 Fed. R. Evid. Serv. 1154

UNITED STATES of America, Appellee, v. Arthur BARRETT, Defendant-Appellant.

No. 75-1293.

United States Court of Appeals First Circuit.

Argued Jan. 7, 1976.

Decided June 22, 1976.

Martin G. Weinberg, Boston, Mass., with whom Oteri & Weinberg, Boston, Mass., Jeanne Baker and Rosenberg & Baker, Cambridge, Mass., were on brief, for defendant-appellant.

Michael A. Collora, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., and Richard E. Bachman, Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass, were on brief for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Arthur Barrett appeals from his conviction after a jury trial for crimes arising from the theft and sale of a collection of postage stamps from the Cardinal Spellman Philatelic Museum in Weston, Massachusetts. Barrett and seven others were charged in a three-count indictment with the interstate transportation of stolen postage stamps, in violation of 18 U.S.C. § 2314; the receipt, ¹ concealment, sale, barter, and disposal of stolen postage stamps in violation of 18 U.S.C. § 2315; and conspiracy under 18 U.S.C. § 371. Of the eight indicted, Barrett alone went to trial. ²

The Government called as its first witness the manager of the Cardinal Spellman Museum who testified that on the morning of March 30, 1973, he arrived to find the Museum vault stripped and much of the stamp collection missing. There were virtually no clues. It was discovered that the burglars had bypassed the Museum's alarm system by attaching a jumper cable to the alarm wires at a juncture outside the Museum, thus neutralizing it. To do this, according to later expert testimony, the burglars would have had to measure the current in different wires in a sophisticated manner using a volt meter to assist in the process.

Three government witnesses implicated Barrett in the burglary and subsequent disposition of the stamps. The first was a Boston coin dealer named Kirzner, a codefendant who pled guilty to one count. Kirzner testified that on or about April 1, 1973, a reputed gangster named Ben Tilley had asked him to appraise some stamps. Tilley, who was deceased by the time of the trial, told Kirzner that he and his gang had stolen the Cardinal Spellman collection. He drove Kirzner to a house near Boston where Kirzner made an appraisal of stamps in albums and sheets marked with the name of Cardinal Spellman Museum. At the house, according to Kirzner, was the defendant Barrett, also known as "Bucky", whom Kirzner had met once previously. Kirzner testified that when he placed a value of only $10,000 on the United States portion of the collection, Barrett said, "if that is all that is worth that he (Barrett) would like to see it be returned to the museum", and "they should have been worth considerably more for the amount of time and effort that was required in securing (them)."

Kirzner made no arrangement to purchase the collection himself, but several days later telephoned Donald Townsend, the co-owner with David Griffiths of a coin and stamp business in Los Angeles, ³ and asked Townsend if he would be interested in buying a large stolen stamp collection worth $20,000 or $30,000. Townsend declined but passed the offer on to an acquaintance, Michael Bass, who expressed interest and came on to Boston.

Kirzner testified that he met Bass in Boston on April 11, 1973, and the two drove to a Holiday Inn in nearby Dedham, Massachusetts. There they rendezvoused with Ben Tilley and were taken to the same house Kirzner had visited earlier. Barrett, with others, was again present and participated in the conversations. After Bass finished looking over the stamps, Barrett drove them back to Kirzner's car. Kirzner concluded his testimony by describing Bass's agreement to buy part of the stamps for $10,000. Kirzner eventually received packets by mail from California that presumably held this sum, which he turned over to Tilley. Tilley paid Kirzner $1,000 for his services.

The Government then called Bass himself as a witness. He like Kirzner identified Barrett, or "Bucky", as being present at the house when Bass examined the stamps. While looking at the stamps on his first visit to the house, Bass recollected Barrett's commenting, " '(w)e know that this collection is worth $50,000 and we want you to make us an offer on it.' " Bass recounted other comments made by Barrett, including ones pointing out particular stamps as supposedly valuable. He testified that Barrett described his role in the burglary: "that he had climbed the telephone pole, bypassed the alarm system . . ., and that there was a tremendous amount of work blowing getting this big vault door off and they were running around like mad pulling collections down, and they figured that this was the biggest score of their lives."

After initially declining to buy the stamps, Bass later told Kirzner that he would purchase the United States portion of the collection for $10,000. Kirzner relayed this offer to Ben Tilley, who accepted it. According to Bass, Barrett drove him back to the house two days later, where Bass picked out the stamps that he wanted. (All in all, Bass said he spent six to eight hours with Barrett while in Boston.) After the stamps were sent to Bass in Los Angeles, Bass gave Townsend and Griffiths a "finders fee" of $500 and some stamps to sell and sent Kirzner $10,000 in cash via registered mail.

Bass testified that he sold a portion of the stamps and stored the remainder, until the latter was seized by FBI agents in Los Angeles on May 22 and 23, 1973 (and thereafter identified by Museum personnel). Bass was also under investigation for other "fencing" activities, and agreed to cooperate with the Government in return for lenient treatment. When early in the investigation Bass was shown 20 or 25 photographs, he identified ones of Barrett, Kirzner and McAleney (a codefendant who pleaded guilty); however, he failed to recognize a photo of Ben Tilley, mistaking a picture of one William Creehan for that of Ben Tilley. ⁴ He also singled out photos of one James Tilley (apparently Ben's brother) and one Champa as portraying persons present during the Boston negotiations, but the Government later dropped charges against them both (and another government witness, "Buzzy" Adams, testified that Barrett told him Champa and possibly Creehan were not involved).

Adams, an admitted and convicted burglar and thief, testified for the Government in exchange for protection for himself and his family. He testified that he was introduced to Barrett by Ben Tilley in early 1972 for the purpose of discussing alarms, and that Barrett displayed knowledge of the use of an ohmmeter to identify alarm wires. Adams also testified that right after being arrested Barrett described his involvement, along with Kirzner, in the Cardinal Spellman stamp theft. He characterized Barrett as "a little familiar with stamps" and as having spoken of collections and stamps, specifically " 'Zeplins' " (which the Cardinal Spellman Collection included).

After the government rested, the defense unsuccessfully sought to introduce testimony from three witnesses under circumstances discussed below; otherwise it presented no testimony of consequence. The defense urged in closing argument that Barrett had been deliberately misidentified by Kirzner for ulterior purposes; that Bass's identification of Barrett was as unreliable as his identification of Tilley; and that "Buzzy" Adams was fingering "Bucky" Barrett to cover his own participation in the stamp theft.

I

Barrett challenges the admission into evidence of Buzzy Adams' testimony portraying Barrett as one knowledgeable in the workings of burglar alarms. ⁵ Adams related that, in the company of Ben Tilley, he talked to Barrett pertaining to a "score". He wanted to find out "if (Barrett) would be interested in taking a look at it and if he could find out if the alarm could possibly be bypassed." ⁶ Barrett told Adams that he didn't know and inquired about the type of alarm, "ADT or whatever". Adams went on to testify, "I said that I thought it might have been RIEP, . . . and I wasn't positive, and he said that he couldn't tell by just that, that he would have to go down and take a look at it and then he would have to take what you call a 'reading' with an ohmmeter on the telephone lines in order to determine what the voltage was and what you could do about it." Adams was permitted to testify that he had seen batteries and voltage equipment in Barrett's possession. ⁷ The court excluded other offered testimony that Adams actually saw Barrett "take a ohmmeter . . . and test the voltage on a particular alarm system and break it open and cut it out". The court characterized this as "so clearly evidence of another crime that . . . it would be asking for trouble."

Barrett argues that Adams' testimony concerning his knowledge of alarms was highly prejudicial and also irrelevant to the offenses charged, as he was charged only with transporting and selling the stolen stamps, not with burglary. Any possible materiality was overshadowed, he contends, by the evidence's capacity for prejudice.

It is true that unrelated criminal involvements may not be shown for the purpose of demonstrating that the accused had a "propensity to commit crime", Fish v. United States, 215 F. 544, 551 (1st Cir. 1914); accord, Massei v. United States, 241 F.2d 895, 902 (1st Cir. 1957), aff'd,355 U.S. 595, 78 S.Ct. 495, 2 L.Ed.2d 517 (1958); Fed.R.Evid. 404(b). However, if such evidence is relevant to another, legitimate purpose it may be admitted if its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, see Fed.R.Evid. 403; United States v. Cepulonis, 530 F.2d 238, 246 (1st Cir. 1976); Dirring v. United States, 328 F.2d 512 (1st Cir.), cert. denied...