U.S. v. Scelzo

• Citation: 810 F.2d 2
• Decision Date: 23 January 1987
• Docket Number: No. 86-1398,86-1398
• Parties: 22 Fed. R. Evid. Serv. 870 UNITED STATES of America, Appellee, v. Joseph SCELZO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 2

810 F.2d 2

22 Fed. R. Evid. Serv. 870

UNITED STATES of America, Appellee, v. Joseph SCELZO, Defendant, Appellant.

No. 86-1398.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1986.

Decided Jan. 23, 1987.

David L. Martin, Providence, R.I., by Appointment of the Court, for appellant.

Seymour Posner, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and PIERAS, ^* District Judge.

LEVIN H. CAMPBELL, Chief Judge.

After a jury trial in the United States District Court for the District of Rhode Island, Joseph Scelzo was found guilty of conspiring to commit wire and credit card fraud, 18 U.S.C. § 371 (1982); devising a scheme to defraud banks by using interstate wire communication to obtain authorizations for credit card sales, 18 U.S.C. § 1343 (1982); and using, in interstate commerce, counterfeit credit cards to obtain money aggregating $1,000 or more, 15 U.S.C. § 1644(a) (1982). On appeal, Scelzo claims that prejudicial evidence was erroneously admitted at trial, and that a necessary jury instruction was omitted. We affirm.

Scelzo was indicted with co-defendants Sheldon Ellman and Sylvio Mollicone who, before trial, pleaded guilty and agreed to testify against him in return for the dropping of 23 of the 28 counts against them. As the main witnesses against Scelzo, they testified that in July 1984 Ellman, the owner of Tolchinsky Furs in Providence, Rhode Island, and of Lassow's Furs in New Bedford, Massachusetts, was approached by Mollicone with a scheme to use counterfeit credit cards in connection with Ellman's fur business. Mollicone and Scelzo met with Ellman at the latter's Rhode Island store in August, and the three initiated a credit card fraud scheme which lasted two months. Using counterfeit credit cards supplied by Scelzo, Ellman fabricated credit card receipts. He then submitted these to his bank as purported evidence of credit card charges received for furs allegedly sold. The bank credited his account with the amounts reflected on the bogus receipts. Eventually, card owners whose genuine cards had been counterfeited received bills and notified the credit card companies that they had not made the purchases shown. The banks, having already credited the money to Ellman's account, suffered the loss. Ellman and Mollicone testified that not only did Scelzo supply the counterfeit cards, he also supplied the valid names, credit card numbers, and expiration dates, and signed each of the fraudulent credit card slips.

Besides Ellman and Mollicone, the government called as witnesses two of Ellman's employees. They testified that they frequently saw Scelzo in the Providence store together with Mollicone, and that Mollicone and Scelzo occasionally left with fur coats.

The government also called Stephen Novosedlik, a former secret service agent. He testified that in May of 1984, while acting in an undercover capacity as a collusive merchant in New Jersey, he met with Scelzo. Scelzo at this time provided him with counterfeit credit cards to be used in a scheme similar to that charged in this case. During direct examination, Novosedlik was allowed to testify that Scelzo told him that he had been engaged in credit card fraud for years.

I.

Scelzo argues that it was error for the court to admit Novosedlik's testimony of Scelzo's involvement in a prior credit card fraud scheme in New Jersey. Scelzo argues that this testimony lacked special probative value and that any probative value it had was outweighed by its prejudicial effect. Fed.R.Evid. 403, 404(b).

The government may not introduce evidence that an accused has engaged in other crimes in order to cause the jury to infer from the accused's bad character that he acted in conformity with that character. However, evidence of past crimes may be admissible specifically to prove motive, opportunity, intent, knowledge, identity, or absence of mistake. Fed.R.Evid. 404(b). The procedure governing admission of such evidence has often been described in this circuit. See United States v. Kadouh, 768 F.2d 20, 21 (1st Cir.1985); United States v. Maldonado-Medina, 761 F.2d 12, 15 (1st Cir.1985); United States v. Morris, 700 F.2d 427, 431 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983); United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982). As a first step, the judge determines whether the evidence has some "special" probative value that would show intent, preparation, knowledge, or absence of mistake. United States v. Kadouh, 768 F.2d at 21. As a second step, the judge balances the evidence's probative value against the prejudice to the defendant. Id. The balancing is committed to the district judge's discretion, and will be reversed only for an abuse of discretion. Id.

The court here followed the above procedure, concluding that Novosedlik's testimony concerning Scelzo's past participation in a credit card scheme was admissible. The court also gave a limiting instruction just before Novosedlik testified. It told the jury not to infer from evidence of past wrongs a character trait and from that to infer that Scelzo acted in conformity with the character trait. The court explained that the jury could, however, use the evidence to help determine issues in the case with respect to motive, opportunity, intent, preparation, plan or knowledge. The court cautioned that these were the only purposes for which the jury could use the testimony.

We have little difficulty in concluding that the evidence of Scelzo's prior involvement in a credit card scheme was specially probative of his knowledge and intent in respect to the credit card scheme forming the basis of the current indictment. See United States v. Moccia, 681 F.2d at 63 (evidence of past convictions for possession of marijuana relevant to show knowledge at subsequent trial for possession of marijuana); United States v. Maldonado-Medina, 761 F.2d at 15 (evidence of prior kidnapping perpetrated in very similar manner had special probative value at trial for second kidnapping). See also United States v. Bice-Bey, 701 F.2d 1086 (4th Cir.), cert. denied, 464 U.S. 837, 104 S.Ct. 126, 78 L.Ed.2d 123 (1983) (evidence of prior fraudulent credit card transactions relevant to rebut claim of inadvertent or innocent involvement in later credit card fraud).

Conspiracy, one of the charges against Scelzo, is an offense in which knowing participation and intent is an issue of crucial import. United States v. Crocker, 788 F.2d 802, 804 (1st Cir.1986) (intent a relevant issue for conspiracy charge); United States v. Zeuli, 725 F.2d 813, 816 (1st Cir.1984) (plea of not guilty to charge of conspiracy renders intent a material issue and imposes a difficult burden on government). We have thus held that evidence of similar past crimes or wrongful acts may be especially appropriate in conspiracy prosecutions. See United States v. Crocker, 788 F.2d at 804 (evidence of prior arrest for uttering counterfeit checks relevant to show intent in subsequent trial for conspiracy to cash counterfeit checks); United States v. Zeuli, 725 F.2d at 816 (evidence of prior extortion demands relevant to prove intent in a conspiracy to extort charge).

We reject Scelzo's assertions that the prior scheme in New Jersey lacked sufficient similarity to the present one to make evidence thereof probative. In both schemes appellant supplied valid cardholder information, including names, account numbers, and expiration dates. In both schemes appellant supplied the counterfeit cards for imprinting. In each scheme appellant allegedly advised the merchant on how to perpetrate the scheme and signed each fraudulent credit sales slip.

Simply because there was some variation in peripheral facts (e.g., in the New Jersey scheme the imprinting and signing of the fraudulent sales slips took place away from the merchant's business, whereas in the present case the imprinting and signing took place at the merchant's business) does not lessen the probative value of this evidence. See United States v. O'Brien, 618 F.2d 1234, 1238 (7th Cir.1980) (similar wrongful acts needs not be duplicates; "the degree of similarity is relevant only insofar as the acts are sufficiently alike to support an inference of criminal intent"). In the present case, the two schemes were...