571 F.2d 1252 (2nd Cir. 1978), 379, United States v. Gubelman

Docket Nº:379, Docket 77-1279.
Citation:571 F.2d 1252
Party Name:UNITED STATES of America, Appellee, v. Robert A. GUBELMAN, Sr., Defendant-Appellant.
Case Date:February 24, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1252

571 F.2d 1252 (2nd Cir. 1978)

UNITED STATES of America, Appellee,

v.

Robert A. GUBELMAN, Sr., Defendant-Appellant.

No. 379, Docket 77-1279.

United States Court of Appeals, Second Circuit

February 24, 1978

Argued Nov. 17, 1977.

Page 1253

Lawrence Iason, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Richard Weinberg, Asst. U. S. Atty., New York City, of counsel), for appellee.

Paul Windels, Jr., New York City (Windels & Marx, New York City, J. Dennis McGrath, New York City, of counsel), for defendant-appellant.

Before FEINBERG, MANSFIELD and TIMBERS, Circuit Judges.

FEINBERG, Circuit Judge:

Robert A. Gubelman, Sr. appeals from his conviction, after a jury trial in the United States District Court for the Southern District of New York before Irving Ben Cooper, J., on two counts of accepting money or other things of value in connection with his official duties as a federal meat inspector in violation of 21 U.S.C. § 622. Like United States v. Benedetto, 2 Cir., 571 F.2d 1246, a companion case decided today, this appeal concerns the admissibility of "other crimes" evidence under the new Federal Rules of Evidence. 1 After a careful review of this record, we conclude that the judgment of conviction must be affirmed.

I

Since appellant does not challenge the sufficiency of the evidence, the basic facts underlying this conviction may be summarized briefly. Appellant was a federal meat inspector for the United States Department of Agriculture from January 1971 until his suspension in December 1976. In this position, appellant had broad powers to enforce the federal sanitary regulations in the various wholesale meat packing plants to which he was assigned. The primary purpose of such inspections was to ensure the wholesome quality and proper branding of the meat leaving these plants for the public market. The thrust of the Government's case against Gubelman was that he had used his official position to regularly extort bribes from the meat packing companies whose plants he inspected.

In the Government's direct case, owners of the two companies referred to in the indictment 2 testified that, during the time

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in which Gubelman was assigned to their plants, he asked for and received regular weekly payments ranging from twenty to fifty dollars. Two officers of other meat packing plants not referred to in the indictment also testified that they too regularly paid appellant from ten to twenty-five dollars per week. Appellant then took the stand 3 and denied having received money from either of the two chief Government witnesses. On cross-examination, appellant denied 4 taking money or anything of value from the four Government witnesses or, for that matter, from any other meat packer. Thereafter, the trial court allowed the Government in its rebuttal case to present evidence of two additional alleged similar criminal acts involving the receipt of cigars and two packages supposedly containing meat products. 5

II

The sole issue on this appeal is whether the evidence of the four alleged similar criminal acts was properly admitted by the trial judge. As we have pointed out at greater length in United States v. Benedetto, supra.571 F.2d at 1246, analysis of other crimes evidence falls into two parts: First, is the evidence relevant to some issue at trial other than "to prove the character of a person in order to show that he acted in conformity therewith," as required by Fed.R.Evid. 404(b); 6 and second, even if relevant, should the evidence nonetheless be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ," as mandated by Fed.R.Evid. 403? 7

The Government argues that this evidence was admissible under Rule 404(b) "to prove Gubelman's pattern of conduct and to contradict his defense of mistaken identity." 8 We are not sure that the other crimes evidence is so intertwined with the acts forming the basis of the indictment as to clearly justify its admission under the rubric of common scheme or plan. See United States v. Murphy, 480 F.2d 256, 260 (1st Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151 (1973); United States v. Laurelli, 293 F.2d 830, 832 (3d Cir. 1961), cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962). We need not, however, further scrutinize and decide this close...

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