U.S. v. Apuzzo, 1130

• Decision Date: 05 May 1977
• Docket Number: D,No. 1130,1130
• Citation: 555 F.2d 306
• Parties: 1 Fed. R. Evid. Serv. 994 UNITED STATES of America, Appellee, v. James APUZZO, Appellant. ocket 77-1015.
• Court: U.S. Court of Appeals — Second Circuit

Page 306

555 F.2d 306

1 Fed. R. Evid. Serv. 994

UNITED STATES of America, Appellee, v. James APUZZO, Appellant.

No. 1130, Docket 77-1015.

United States Court of Appeals Second Circuit.

Argued May 3, 1977.

Decided May 5, 1977.

Andrew B. Bowman, Federal Public Defender, New Haven, Conn., for appellant.

Hugh W. Cuthbertson, Asst. U. S. Atty., New Haven, Conn. (Peter C. Dorsey, U. S. Atty., New Haven, Conn., of counsel), for appellee.

Before WATERMAN and GURFEIN, Circuit Judges, and BLUMENFELD, District Judge. ^*

PER CURIAM:

Apuzzo was convicted in a one-count indictment of having engaged in the business of dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1) and 924(a). In addition to a claim of entrapment, appellant raises three claims of error.

The first relates to a pretrial ruling by Judge Zampano that if the defendant took the stand the court would allow evidence of a New Jersey misdemeanor conviction for the possession and transportation of untaxed cigarettes to be used for impeachment. The appellant took the stand and testified to this prior conviction on direct examination, apparently to avoid the prejudice that might result from its being brought out for the first time on cross-examination. Apuzzo contends that the judge's ruling was prejudicial error under the new Federal Rules of Evidence, Rule 609(a). He contends that the crime mentioned was not the kind of crime which was admissible for impeachment under Rule 609, because it was only a misdemeanor.

In United States v. De Angelis, 490 F.2d 1004 (2d Cir.), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974), we held that a conviction for possession and transportation of untaxed cigarettes, the precise offense here, was not unrelated to veracity, and hence was admissible. Appellant now asks us to hold, however, that in view of the language of Rule 609(a)(2), which requires that in the case of a misdemeanor the conviction involve "dishonesty or false statement," the De Angelis case is no longer law. We decline to do so in the circumstances of this case.

The conviction for possession and transportation of untaxed cigarettes is similar to the crime for which appellant was on trial, namely, engaging in the business of dealing in firearms without a license. It was therefore, in any event, admissible as evidence tending to show a predisposition to commit the crime, such evidence being open to proof when the defense is entrapment. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Koska, 443 F.2d 1167, 1169 (2d Cir.), cert. denied, 404 U.S. 852, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971). In any event, as we noted in United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977), a crime which involves defrauding the revenue stands high in the category of crimes affecting veracity. See United States v. De Angelis, supra. We find no error in the ruling below.

Appellant also contends that a statement by a government informant called by the appellant to the effect that the defendant was dealing in stolen goods constituted reversible error. We find that the answer was not anticipated by the...