U.S. v. Canniff

• Decision Date: 13 August 1975
• Docket Number: Nos. 1142,1197,D,s. 1142
• Citation: 521 F.2d 565
• Parties: UNITED STATES of America, Appellee, v. Bryan CANNIFF and John Benigno, Defendants-Appellants. ocket 75-1078, 75-1126.
• Court: U.S. Court of Appeals — Second Circuit

Page 565

521 F.2d 565

UNITED STATES of America, Appellee, v. Bryan CANNIFF and John Benigno, Defendants-Appellants.

Nos. 1142, 1197, Docket 75-1078, 75-1126.

United States Court of Appeals Second Circuit.

Argued June 25, 1975.

Decided Aug. 13, 1975.

Michael A. Young, The Legal Aid Society, New York City (William J. Gallagher, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Canniff.

Theodore Krieger, New York City, for defendant-appellant Benigno.

Lawrence B. Pedowitz, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty. for the Southern District of New York, Audrey Strauss, John D. Gordan, III, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before CLARK, Associate Justice, ^* MANSFIELD and MULLIGAN, Circuit Judges.

MANSFIELD, Circuit Judge:

Bryan Caniff and John Benigno appeal from convictions after a jury trial in the United States District Court for the Southern District of New York, Lee P. Gagliardi, Judge, for conspiracy to violate the federal narcotics laws, 21 U.S.C. § 846, and possession with intent to distribute and distribution of cocaine, 21 U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(A). On this appeal they raise numerous points of error, none of which requires us to disturb their convictions.

BENIGNO'S CONTENTIONS

Benigno first contends that he was deprived of a fair trial when the Assistant U.S. Attorney was permitted, on cross-examination of him, to inquire over objection into his past criminal convictions. While such inquiry is generally allowed in this Circuit if "for some purpose other than merely to show a defendant's criminal character," United States v. Papadakis, 510 F.2d 287, 294 (2d Cir. 1975); see United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967), Benigno argues that it was improper and highly prejudicial in his case because the prosecutor was actually attempting to bring out his adjudication in New York as a youthful offender. Such adjudications, argues Benigno, are not convictions for crimes under federal and state law and therefore cannot be the subject of impeachment. See United States v. Sposato, 446 F.2d 779, 780-81 (2d Cir. 1971).

The background was that, although Benigno had admitted before taking the witness stand that he had been adjudicated a youthful offender in New York and the prosecutor had indicated that he would not use the adjudication to impeach him, Benigno testified on direct before the jury that he had never been convicted of a crime. To counter the effect of this testimony the prosecutor on cross-examination asked him whether he had ever been convicted of grand larceny, burglary or as a youthful offender in New York State. Benigno answered "No" to all of these questions and no other proof on the issue was admitted by the trial judge. The government's questions were based on the information furnished earlier by Benigno's counsel regarding the New York youthful offender adjudication and on Benigno's FBI arrest record, which showed arrests for grand larceny and burglary. The prosecutor reasoned correctly, it appears ¹ that one or both of the arrests formed the basis of the New York proceeding.

Since an arrest record alone would be a tenuous "good faith" basis to support questions concerning prior convictions for crimes, see United States v. Haskell, 327 F.2d 281, 284 (2d Cir.), Cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964), the permissibility of this line of questioning turns on the propriety of the inquiry into Benigno's admitted youthful offender adjudication. Without knowledge that the defendant had been adjudicated a youthful offender the prosecutor would not have known that one or more of the arrests on his record probably resulted in the youthful offender proceeding, since the State of New York does not make records of youthful offender adjudications available to the government.

Surprisingly, the scope of inquiry permitted by federal courts into state youthful offender adjudications does not appear to have been raised before in this or any other circuit. Under New York law (which, however, is not controlling in this federal proceeding, see United States v. Turner, 497 F.2d 406 (10th Cir. 1974); Rule 26, F.R.Cr.P.) use of a youthful offender adjudication for the purpose of impeachment is prohibited since the adjudication is not deemed a conviction, People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727 (1970); People v. Vidal, 26 N.Y.2d 249, 253-54, 309 N.Y.S.2d 336, 339-40, 257 N.E.2d 886, 888-889 (1970). The cross-examiner may, however, bring out the facts underlying the adjudication so long as he does not elicit the adjudication itself. People v. Duffy, 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804 (1975); People v. Rahming, supra, 26 N.Y.2d at 419, 311 N.Y.S.2d at 299, 259 N.E.2d at 732. Thus in New York a youthful offender's credibility as a witness may be weighed in the light of any conduct on his part leading to the youthful offender adjudication which might cast doubt on his veracity. But the records and existence of the youthful offender adjudication itself must be kept secret in order to avoid the stigma normally attending a conviction for a crime, see N.Y.Crim.Proc.L. § 720.35.

Although there is a federal Youth Corrections Act, 18 U.S.C. §§ 5005-26, the proceeding in the federal courts most analogous to the New York youthful offender procedure is one for juvenile delinquency, 18 U.S.C. §§ 5031-42. ² Like the New York proceeding, an adjudication in a federal court as a juvenile delinquent is not deemed a criminal conviction, see Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963), and may not be used to attack a defendant's credibility in a later proceeding, see Cotton v. United States, 355 F.2d 480 (10th Cir. 1966); 18 U.S.C. § 5038. Furthermore, the purpose of a federal juvenile delinquency proceeding, like New York's youthful offender proceeding, is to avoid the stigma of a prior criminal conviction, see Cotton v. United States, supra.

In view of the consistent policy running through both New York and federal law that youthful offender or juvenile delinquency adjudications are not to be treated as criminal convictions and that no stigma should attach to a young person so adjudicated, we agree that a New York state youthful offender adjudication should normally be inadmissible in federal court to attack the credibility of a defendant. In the words of the District of Columbia Circuit in a similar case:

"It would be a serious breach of public faith . . . to permit these informal and presumably beneficent procedures to become the basis for criminal records, which could be used to harass a person throughout his life. There is no more reason for permitting their use for such a purpose, than there would be to pry into school records or to compile family and community recollections concerning youthful indiscretions of persons who were fortunate enough to avoid the juvenile court."

Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905, 908-09 (1941) (footnotes omitted); cf. Cotton v. United States, supra ; Rule 609(d), Federal Rules of Evidence. ³ Any other result while perhaps not directly violative of any legislative directive, would be wholly inconsistent with the legislative purpose behind both of these youthful offender statutes.

We reject the government's argument that the New York state adjudication should be deemed a conviction for purposes of federal law and hence a permissible subject for cross-examination, which is advanced on the ground that otherwise the federal prosecutor, absent a "conviction," might be precluded from inquiring into the facts underlying the youthful offender adjudication. See United States v. Miles, 480 F.2d 1215, 1217 (2d Cir. 1973). The fact remains that federal and state law is in accord that these adjudications are not criminal convictions and therefore that they cannot later be used to impeach a defendant or witness, regardless whether or not New York courts allow a cross-examiner to question a defendant about the facts underlying the adjudication. ⁴

Although a youthful offender adjudication may not normally be used to impeach a witness, the attempt to do so in the present case does not require reversal. In the first place, the witness' own counsel, by eliciting from Benigno that he had never been convicted of a crime, opened the door to the inquiry. United States v. Keilly, 445 F.2d 1285, 1288-89 (2d Cir. 1971), Cert. denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972). Despite the distinction between a conviction and a youthful offender adjudication, it would be unfair to the government to permit a defendant who had been adjudicated a youthful offender to create the erroneous impression that he was lily-white by implying to the jury, which cannot be expected to draw such fine distinctions, that he had never committed any offense at all. See, e. g., United States ex rel. Rohrlich v. Fay, 240 F.Supp. 848, 850 (S.D.N.Y.1965).

More important, there was no real prejudice to Benigno from the prosecutor's questions, see Price v. United States, 282 F.2d 769 (4th Cir. 1960), Cert. denied, 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed.2d 812 (1961), since the jury never learned that Benigno had been adjudicated a youthful offender. Cf. United States v. Rivera, 496 F.2d 952, 953 (2d Cir. 1974). He testified on direct examination that he had never been convicted of a crime, and that assertion was never contradicted. He answered "No" to all of the cross-examiner's questions on this point and no other evidence was admitted. To avoid the jury's gaining any impression from the questions, even though unanswered or answered in the negative, that there was a factual basis for asking them and therefore that convictions had in fact occurred, the trial judge clearly instructed the jury that the mere asking of a question could not support an inference of fact. In addition, Benigno's counsel rightly emphasized in...