U.S. v. Gabay

• Decision Date: 21 February 1991
• Docket Number: Nos. 89-6059,89-6061,s. 89-6059
• Parties: 32 Fed. R. Evid. Serv. 336 UNITED STATES of America, Plaintiff-Appellee, v. Simon GABAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1536

923 F.2d 1536

32 Fed. R. Evid. Serv. 336

UNITED STATES of America, Plaintiff-Appellee, v. Simon GABAY, Defendant-Appellant.

Nos. 89-6059, 89-6061.

United States Court of Appeals Eleventh Circuit.

Feb. 21, 1991.

Jay R. Moskowitz, Coconut Grove, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Mayra R. Lichter, Linda C. Hertz, Judith Kozlowski and Lynne W. Lamprecht, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and PECK ^*, Senior Circuit Judge.

DUBINA, Circuit Judge:

Appellant, Simon Gabay ("Gabay") appeals his convictions by a jury of counterfeiting traveler's checks (violation of 18 U.S.C. Sec. 371 and Sec. 513) and bond jumping (violation of 18 U.S.C. Sec. 3146(a)(1) and Sec. 401(3)). ¹ On appeal, Gabay asserts numerous challenges to his convictions including: (1) the joinder of his two indictments for counterfeiting and bond jumping caused undue prejudice; (2) the admission of the transcript of the prior testimony of a deceased witness was improper since Gabay was unable to cross-examine; (3) a government witness's improper reference to Gabay's silence constituted reversible error; (4) an aura of prejudice denied him a fair trial; (5) the trial court erred in allowing deliberations and verdict by an eleven-member jury without full inquiry; and (6) a sentence of 60-months on the charge of criminal contempt was outside the bounds of the sentencing guidelines and unreasonable. We find these claims without merit, and, accordingly, affirm Gabay's convictions and sentences.

I. BACKGROUND

Gabay was the coordinator of a group that manufactured and attempted to distribute nearly $40 million of counterfeit traveler's checks. Gabay and nine others were arrested after selling over $1 million in counterfeit traveler's checks to an undercover officer. Eight of the defendants pled guilty prior to trial and entered into cooperation agreements with the government. Gabay and codefendant, Lawrence Schmalholz, were set to proceed to trial on February 21, 1989. Shortly before trial, Gabay fled. ² Gabay left behind a videotape explaining the reasons for his flight. On March 9, 1989, Gabay was found in a luxury apartment in Venezuela, hiding in a bookcase. Subsequently, he was indicted for bond jumping. On June 12, 1989, the district court joined the indictments and Gabay proceeded to trial on the counterfeiting and bond jumping charges.

Soon after jury deliberations commenced, the district court halted them and held a hearing regarding possible juror misconduct. Based on the evidence presented at the hearing, the district court concluded one juror had disobeyed the oath not to speak about the case or form an opinion regarding Gabay's guilt. The district court, therefore, dismissed the juror and, over a defense objection, continued the deliberations with eleven jurors. A motion for a new trial on this issue was denied. Following the two-week jury trial, Gabay was found guilty of the counterfeiting and bond jumping charges. After a lengthy sentencing hearing, Gabay was sentenced to 111 months in prison, consisting of 51 months incarceration for the counterfeiting conviction, and 60 months incarceration for criminal contempt on the bond jumping conviction, to be served consecutively.

II. DISCUSSION

A. Joinder

Under Rule 13 of the Fed.R.Crim.P., the trial court may order two indictments tried together if the two offenses could have been joined in a single indictment. Whether substantive and bond jumping offenses may be joined is a question of first impression in this circuit. Those circuits which have addressed the question have held that those charges may be joined for trial under the proper circumstances. United States v. Peoples, 748 F.2d 934 (4th Cir.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); United States v. Ritch, 583 F.2d 1179 (1st Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978); United States v. Bourassa, 411 F.2d 69 (10th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969). We agree with these circuits, and find that joinder of Gabay's counterfeiting and bond jumping indictments was permissible under the circumstances of this case.

This court undertakes a two-step inquiry to determine whether separate charges were properly tried at the same time. First, the government must demonstrate that the initial joinder of the offenses was proper under Fed.R.Crim.P. 8. Next, we must determine whether the trial court abused its discretion by refusing to order a severance under Fed.R.Crim.P. 14. United States v. Montes-Cardenas, 746 F.2d 771, 776 (11th Cir.1984).

Offenses may be joined if they are based on "two or more acts or transactions connected together or constituting part of a common scheme or plan." (Fed.R.Crim.P. 8(a)). Bond jumping and the underlying offense are "connected together" if they are related in time, the motive for flight was avoidance of prosecution of the underlying offense, and custody derived directly from the underlying offense. Ritch, 583 F.2d at 1181. Gabay absconded soon after his arrest for counterfeiting, the counterfeiting led directly to his custody, and by his own admissions (made in a videotape left behind for the court), his motive for flight was directly related to his impending prosecution for counterfeiting.

Gabay argues that while substantive offenses and flight offenses may be joined under some circumstances, severance was warranted in this case based upon Rule 14 considerations. He also argues that joinder of the substantive and flight offenses was unduly prejudicial.

Unfair prejudice does not result when two offenses are joined if evidence admissible to prove each offense is also admissible to prove the other offense. Peoples, 748 F.2d at 936. Gabay fails to establish unfair prejudice since evidence of flight is admissible to prove guilty conscience and evidence of the counterfeiting is admissible to prove the motive for the flight. Id.

B. Deceased Witness's Testimony

A witness named Saul Rubin testified in February 1989 on behalf of the government at the trial of Gabay's codefendant, Lawrence Schmalholz. Rubin then died in May of 1989. Rubin testified that he owned a book bindery and that he cut the sheets of traveler's checks to check size and then stored them in his shop until Gabay picked them up. The transcript of Rubin's testimony was admitted and read to the jury pursuant to Fed.R.Evid. 804(b)(3) & (5). Gabay contends that the admission of Rubin's testimony was error. Determinations regarding the admissibility of evidence are within the discretion of the district court and should not be reversed absent an abuse of discretion. United States v. Collins, 779 F.2d 1520, 1531 (11th Cir.1986).

Fed.R.Evid. 804(b)(3) permits the introduction, upon demonstrating the unavailability of the declarant, of statements contrary to the penal interest of the declarant.

There is no question that the declarant was unavailable since the witness was dead. The statements of an unavailable declarant are deemed against penal interests under Rule 804(b)(3) where the statements so tend to subject the declarant to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true." In applying this objective standard, the Advisory Committee Notes to Rule 804 instruct that whether "a statement is in fact against interest must be determined from the circumstances of each case." 56 F.R.D. 183, 328 (1972).

Gabay suggests that the statements were not truly against Rubin's interests because, by being granted immunity and cooperating with the investigation, Rubin avoided the filing of criminal charges against him. Precise examination of the content of Rubin's statement and the circumstances leading to its making refutes Gabay's contention that the statement does not fit within the "against penal interest" exception to the hearsay rule.

Courts closely examine the circumstances under which statements are made by codefendants or accomplices to determine whether they are truly against penal interests. See, United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977). ³ The rationale for this finer level of scrutiny in criminal cases is the fear that the declarant may be acting out of a strong motive to exonerate himself by misrepresenting his own role and degree of culpability and attempting to shift a portion of the blame upon the codefendant. Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986). Yet, the very content of Rubin's statement repudiates any motive to shift blame or distort Gabay's degree of culpability. The testimony read to the jury clearly and directly implicated the declarant in criminal conduct. Absent a showing of circumstances presenting obvious motives for falsification, the trial court's decision to admit the testimony of a deceased witness will not be disturbed. We find no abuse of discretion by the district court in admitting Rubin's transcript testimony.

C. Right To Silence

Gabay's case agent testified at trial that shortly after Gabay's arrest, Gabay was asked some questions which he agreed to answer. The case agent explained that after answering several questions, Gabay stated that he did not want to answer any more questions. A side-bar discussion immediately followed, and the jury was instructed to disregard the statement that Gabay did not want to speak further with the agent. Gabay moved for a mistrial and his motion was denied.

Gabay now argues that this reference to his silence, in front of the jury, entitles him to a new trial. He asserts it is fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow implications of that silence to be used against him. Doyle v. Ohio, 426 U.S....