U.S. v. Colletti
| Decision Date | 21 December 1992 |
| Docket Number | Nos. 91-5405,91-5518 and 91-5519,s. 91-5405 |
| Citation | 984 F.2d 1339 |
| Parties | 36 Fed. R. Evid. Serv. 668 UNITED STATES of America v. David COLLETTI, Appellant. UNITED STATES of America v. Kevin KELLY, Appellant. UNITED STATES of America v. Joseph SHEA, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Peter Goldberger (argued), Philadelphia, PA, for David Colletti, appellant.
Tonianne J. Bongiovanni (argued), Asst. Public Defender, Newark, NJ, for Kevin Kelly, appellant.
John C. Eastlack, Jr. (argued), Cherry Hill, NJ, for Joseph Shea, appellant.
R. David Walk, Jr. (argued), Asst. U.S. Atty., Newark, NJ, for U.S PRESENT: STAPLETON, MANSMANN, Circuit Judges, and FULLAM, Senior District Judge. *
IT IS ORDERED that:
1. The petition for panel rehearing is granted.
2. The Opinion, filed herein on October 7, 1992, is modified as follows:
Page 14, second sentence, second paragraph, shall be amended to read as follows:
3. The Opinion is re-entered as of the date of this order.
Convicted of transporting stolen diamonds in interstate commerce, in violation of 18 U.S.C. § 2314, and of conspiracy to do so, 18 U.S.C. § 371, David Colletti, Joseph Shea, and Kevin Kelly have filed timely appeals to this court, seeking new trials and also challenging their sentences.
On June 15, 1989, a courier transporting a valuable shipment of diamonds from Kay Jewelers was held up at gunpoint and robbed of some $626,000 worth of jewels. The crime had been planned for several months, principally by the defendant Shea. The defendant Colletti, who worked at Kay Jewelers, provided the advance information concerning the shipment, including the date and time, the route to be traveled, and a description of the vehicle and license number. The actual robbery was committed by the defendants Shea and Kelly, together with an unindicted co-conspirator, Robert Nolan, who testified for the government at trial.
Immediately after the crime, the three robbers proceeded by automobile to the home of one Donald Uhler in Somerdale, New Jersey. They revealed to him that they had just committed the crime, and he agreed to stash the stolen diamonds in his basement. In the weeks following the robbery, Shea and Colletti made several trips to New York City and completed sales of the stolen gems.
The co-conspirator, Robert Nolan, and another government witness named Michael Kreiner, had been involved with appellant Shea in other robberies of jewelry couriers, both before and after the crime involved in this case. On these other occasions, allegedly, Shea had "cased" the job himself, without involving any "insiders" employed by the target firms. The appellant Colletti--but, understandably, neither of the other two appellants--charges that the trial judge erred by excluding cross-examination which would have disclosed these other crimes.
The issue first surfaced during cross-examination of government witness Nolan, the unindicted co-conspirator. Colletti's counsel sought to cross-examine him concerning a tape-recorded conversation he had had with appellant Shea, discussing the other crimes and the fact that no inside information had been involved on those other occasions. Counsel for Shea objected, and in the ensuing colloquy it appears that counsel for the government joined in that objection. Before ruling on the objection, the court sought further clarification from Colletti's counsel as to the precise contents of the proffered conversation. Colletti's counsel stated that he was not entirely certain whether the other crimes had allegedly occurred before or after the crime on trial, but that he would investigate further during the next recess. The court made clear that, if counsel wished to pursue the matter, he would have to make a specific offer of proof. So far as the record discloses, that ended the matter: counsel apparently decided not to pursue the issue further. It is thus clear that this issue has been waived, and cannot now be considered. Moreover, it seems crystal clear that the objection to this line of questioning should necessarily have been sustained on hearsay grounds.
But the admissibility of this "other crimes" evidence arose again during cross-examination of the government witness Michael Kreiner, when Colletti's counsel sought to cross-examine him on the same subject. Since Kreiner would have been testifying to facts within his own knowledge--his own participation with Shea in the other crimes--the hearsay rule was not implicated; and the issue has been preserved for appellate review. We conclude, however, that the trial judge did not abuse his discretion in excluding this cross-examination on relevancy grounds. The fact that inside information was not available, and was not used, on one occasion sheds no meaningful light on whether inside information was available and used on another occasion.
Appellants Colletti and Shea both complain that their impeachment of the government's star witness, Nolan, through cross-examination concerning his criminal record, was improperly restricted because they were not permitted to question him about a 1969 conviction described in his rap sheet as "disorderly person--false pretense". We conclude, however, that the rulings complained of were well within the discretion committed to the trial judge. In the first place, appellants failed to provide the trial judge with enough information about the alleged conviction to enable the court to rule on its admissibility for impeachment purposes. More significantly, appellants failed to comply with Fed.R.Evid. 609(b), which provides:
The impeachment value of a 22-year-old conviction, for what may well have been merely a summary offense akin to disorderly conduct, is virtually non-existent.
Finally, it should be noted that the witness was cross-examined concerning three previous burglary convictions and a 1987 parole violation for filing a false credit application. Thus, even if exclusion of the 1969 conviction had been erroneous--and it was not--the error would have been harmless.
Appellant Shea also charges error in the denial of a bill of particulars. But the indictment adequately informed the appellant of the nature of the charges against him, and his defense was in no way prejudiced by the ruling complained of.
A much closer question is presented by Colletti's argument that the prosecutor misrepresented the record and exceeded the bounds of legitimate advocacy when, in his rebuttal argument, he charged Colletti with a "clear lie" for having denied that he worked "with Robert Sirois [at Kay Jewelers]" on the night in question, and argued to the jury "if he lied about that, you can infer that he lied about his participation in this robbery ..." (App.Vol. II 757(a)) Colletti argues that his trial testimony--that he worked at Kay Jewelers that evening, but did not work "with Robert Sirois" on that occasion--was entirely truthful, and was not contradicted by any other witness. A close examination of the record supports Colletti's assertion. Although both Colletti and Sirois worked at the store that night, there is no evidence that they were working with each other, or even that they were present in the store at the same time.
Our review of the alleged error is circumscribed by the absence of any contemporaneous objection to the prosecutor's remarks. Thus, appellant can prevail on this issue only by establishing that the prosecutor's misstep was so egregious as to "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice". U.S. v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985); U.S. v. Pungitore, 910 F.2d 1084, 1126 (3d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). We do not believe this standard has been met.
Although the improper argument occurred during rebuttal, after the closing argument of appellant's counsel, it could readily have been corrected if it had been called to the attention of the trial judge. There is room for an inference that, in the context of the trial, the incident was not nearly as significant as the present argument would suggest. Moreover, the court's charge made clear the jury's responsibility for recalling and interpreting the testimony. The jury heard Colletti testify that he had indeed worked at Kay Jewelers that evening, and the jury was in a position to evaluate the testimony concerning whether he did or did not work with Mr. Sirois, if that detail was important.
The government's evidence was very strong. It is doubtful that the prosecutor's error affected the outcome. We are satisfied that the fundamental fairness of the trial was not undermined. No manifest injustice has been shown.
Finally, appellant Kelly argues that a new trial should be granted because F.B.I. Agent Walsh was...
To continue reading
Request your trial
-
U.S. v. McLaughlin
...in the criminal context. 8 We review the district court's determination of the amount of loss for clear error. United States v. Colletti, 984 F.2d 1339, 1345 (3d Cir.1992). Mark contends that the First Fidelity account was a reserve against future warranty claims and that its balance theref......
-
US v. Palma-Ruedas
...at the time, Palma-Ruedas did not think the guard's remarks were particularly damaging to his fair trial rights. See United States v. Colletti, 984 F.2d 1339 (3d Cir.1992) (noting that defendant's failure to ask for correction at trial supports the "inference that ... the incident was not n......
-
U.S. v. Miller
...disbelieved him ...." United States v. McLaughlin, 126 F.3d 130, 140 (3d Cir.1997) (emphasis in original) (quoting United States v. Colletti 984 F.2d 1339, 1348 (3d Cir.1992), abrogated on other grounds by United States v. Fiorelli, 133 F.3d 218, 222-23 (3d Cir.1998)).19 Moreover, the jury'......
-
U.S. v. Zichettello
...theft[,] . . . . [they] cannot be considered participants for purposes of 3B1.1(a)." Id. (emphasis added) (citing United States v. Colletti, 984 F.2d 1339, 1346 (3d Cir. 1992) (holding that receiver of stolen property is not deemed participant in theft where robbery was completed before rec......