566 F.2d 429 (2nd Cir. 1977), 227, United States v. Corey

Docket Nº:227, Docket 77-1308.
Citation:566 F.2d 429
Party Name:UNITED STATES of America, Appellee, v. Eugene COREY, Defendant-Appellant.
Case Date:November 30, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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566 F.2d 429 (2nd Cir. 1977)

UNITED STATES of America, Appellee,


Eugene COREY, Defendant-Appellant.

No. 227, Docket 77-1308.

United States Court of Appeals, Second Circuit

November 30, 1977

Argued Oct. 13, 1977.

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Irving Anolik, New York City, for appellant.

Frederick T. Davis, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D. N. Y., John J. Kenney, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Appellant, Eugene Corey, was convicted of wire fraud, mail fraud, and conspiracy, in violation of 18 U.S.C. §§ 1343, 1341, and 371, following a five-day jury trial in the United States District Court for the Southern District of New York, Constance Baker Motley, Judge. 1 The evidence, the sufficiency of which is not in question, revealed appellant's acceptance of kickbacks from those supplying business forms to his employer and his cooperation in short shipments and overbilling by the suppliers.

Corey makes several contentions on appeal. His claims of improper federal jurisdiction over what is essentially a state offense commercial bribery 2 and of improper

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submission of the conspiracy count to the jury 3 are wholly without merit. His other contentions, involving the admissibility of prior act evidence and alleged prosecutorial misconduct in informing the jury that Corey had changed his name, while substantial enough to merit discussion, do not require reversal. Accordingly, we affirm.

Corey argues that the trial court erred in permitting the prosecution to cross-examine him concerning his dismissal from previous employment at Columbia Broadcasting System (CBS) for falsifying his W-2 form and overtime hours record. Over objection, the testimony was permitted under Rule 404(b) of the Federal Rules of Evidence, 4 as a prior similar act establishing guilty knowledge, by tending to show that Corey had signed documents acknowledging the receipt by his employer, Hartz Mountain, of data processing supplies, knowing the documents to be falsified. His CBS dismissal had occurred some sixteen years prior to the date of trial. 5

While evidence of prior similar acts is admissible to show guilty knowledge, United States v. Santiago, 528 F.2d 1130, 1134 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976), and the trial court is given wide discretion in admitting such evidence, United States v. Feldman, 136 F.2d 394 (2d Cir. 1943), aff'd, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944), the scope of that discretion does not permit introduction of every prior similar act which may contribute in some manner to a showing of intent. United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1965). Rather, it must appear that the probative value of such evidence outweighs the potential for prejudice against the defendant. United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967). Probative value is dependent on the existence of a "close parallel" between the crime charged and the acts shown. United States v. Chestnut, 533 F.2d 40, 49 (2d Cir.), cert. denied,429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976), quoting United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir. 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976).

Whether there is sufficient similarity between the crime charged and the prior act to provide a basis for inferring that appellant acted intentionally or knowingly in

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committing the crime is a close question. On the one hand, there is some similarity in method the submission of false documents to an employer. On the other, the fact that Corey may have deliberately falsified his own overtime hardly proves that he had the knowledge or intent to falsify purchases of supplies by Hartz Mountain from third parties.

Undoubtedly, the attenuated similarity between the two acts demonstrates the low probative value of the CBS incident as circumstantial evidence of intent to commit the crimes here charged. The minimal relevancy of the CBS incident is further buttressed by its remoteness in time, having occurred sixteen years before the trial and between five and seven years before Corey allegedly began his fraudulent conduct at Hartz Mountain. See C. McCormick, McCormick's Handbook of the Law of Evidence 439 n.30 (2d ed. E. Cleary ed. 1972) ("In appraising the probative worth of the offered evidence, before determining whether it is outweighed by the countervailing dangers, the distance in time of the facts offered will often cause the court to discount its value."); cf. Fed.R.Evid. 609(b) (generally restricting the use of convictions to impeach the credibility of a witness to convictions rendered within ten years).

In any event, assuming error in the admission of the testimony, we hold that the error was harmless. We do not find that appellant was sufficiently prejudiced by the admission of the CBS evidence to require reversal of his conviction. The case against him was strong, the incidents of fraud many, the amounts and time period involved substantial, and the witnesses against him the suppliers themselves. A nonconstitutional error, as in the case of erroneous admission of similar act evidence, is harmless if it is " highly probable" that the error did not contribute to the verdict. Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir. 1976), quoting R. Traynor, The Riddle of Harmless Error, 35 (1970). Where there is overwhelming evidence of guilt, as there was here, erroneous evidentiary rulings on such collateral matters are often harmless. See United States v. Earl, 529 F.2d 1145, 1147-48 (6th Cir.), cert. denied, 426 U.S. 938, 96 S.Ct. 2656, 49 L.Ed.2d 391 (1976); Rothschild v. New York, 525 F.2d 686, 687 (2d Cir. 1975); United States v. Rowan, 518 F.2d 685, 692 (6th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975).

Corey also urges that the Government committed reversible error when it elicited the...

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