U.S. v. Gallo

• Decision Date: 26 August 1976
• Docket Number: No. 75-2095,75-2095
• Citation: 177 U.S.App.D.C. 214,543 F.2d 361
• Parties: UNITED STATES of America v. Joseph L. GALLO, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 361

543 F.2d 361

177 U.S.App.D.C. 214

UNITED STATES of America v. Joseph L. GALLO, Appellant.

No. 75-2095.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1976.

Decided Aug. 26, 1976.

Kenneth R. West, Silver Spring, Md., for appellant.

Jordan A. Luke, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and Paul F. Healy, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before WRIGHT and MacKINNON, Circuit Judges, and WEIGEL, ^* United States

District Judge for the Northern District of California.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Following a jury trial, Joseph L. Gallo (appellant) of Alexandria, Virginia, a dealer in antiques, coins and stamps (Tr. 145) was convicted of transporting in interstate commerce certain stolen gold coins of a value in excess of $5,000, knowing the same to have been stolen, in violation of the first paragraph of 18 U.S.C. § 2314. He appeals from the judgment of the court sentencing him to

three (3) years probation and a fine of $2,000. I. THE

ADMISSION OF EVIDENCE OF A SUBSEQUENT PURCHASE OF

STOLEN STAMPS

Gallo's first point, which we find unconvincing, is his contention that the trial court committed error when it admitted evidence of a subsequent $4,000 purchase by Gallo of a stamp collection stolen in the break-in. The stamp purchase was consummated two months after he bought the stolen coins. Since the indictment of Gallo did not include any offense with respect to the stolen stamps, he contends that the admission of this evidence was improper and irrelevant. ¹ He had properly objected to the introduction of such evidence at trial (Tr. 4).

The evidence, which is objected to, was admitted to support the Government's claim that Gallo knew that the coins, when he transported them, had been stolen.

Such testimony was given by the three thieves, Messrs. Bailey, Minossi and Blankenship, who testified as follows: In October, 1974, they went to Appellant's shop with the stamp collection they had stolen from the Philipp's residence on August 29, 1974, which was the occasion when they also stole the coins (Tr. 72). Despite efforts to cut Mr. Philipp's name off each page of stamps, they missed a few pages and, according to their testimony, the Appellant, while examining the stamps, saw Mr. Philipp's name and cut it out. (Tr. 81, 121, 161). Thus, he knew the stamps came from Philipp. In his argument to the jury the prosecutor made three passing references to the "stamps" (Tr. 322, 324).

With respect to this evidence of the subsequent purchase by Gallo of the stamp collection the court charged the jury:

The indictment does not charge the defendant with stamps or income tax evasion or anything of that sort, so you are not to consider that in this matter. The only charge is the matter of gold coins, and so you would make all of your determinations of his innocence or guilt upon that alone.

(Tr. 359-360).

Gallo also argues that the stamp sale testimony, even if relevant, was cumulative on the issue of knowledge and unnecessarily prejudicial.

The other testimony from which the jury could conclude that the Appellant had knowledge of the stolen character of the coins on August 30, 1974 when he purchased them, was as follows: Mr. Blankenship had testified that prior to August, 1974, he mentioned the Philipp's coin collection to the Appellant, who said he knew the collection and wanted it (Tr. 148); that he had previously sold stolen goods to Gallo (Tr. 147-48); that during the night (Tr. 113) ² of August 29, 1974, following the afternoon break-in, he called the Appellant, told him he had the coin collection and was told by Gallo to come down to the store at 10:30 a. m., the following morning (Tr. 152). In addition, the testimony of Bailey, Blankenship and Minossi indicated that on August 30, 1974, Gallo stripped Jack Philipp's name off certain coin books and then stated that Jack Philipp was deceased (Tr. 78, 79, 119, 158, 159) and his widow "doesn't need the money anyway" (Tr. 119). This testimony supports an inference that on August 30, 1974 the Appellant had knowledge of the source and character of the coins.

We agree that evidence disclosing the commission of another offense should be excluded, even though relevant, if the value of the evidence is limited and the danger of prejudice is great, Devore v. United States,368 F.2d 396 (9th Cir. 1966). But we find the questioned evidence here to be relevant and admissible under this rule.

As the Government argues:

This evidence must be viewed in the context of Blankenship's testimony that he had discussed the Philipp collection with appellant prior to the burglary; that appellant had instructed Blankenship to bring that collection to him when Blankenship got it; that Blankenship called appellant on the night of the burglary to report his having obtained the collection; and appellant's conversations with the thieves on the day after the burglary regarding the fact that the deceased, Mr. Philipp, no longer had any need of the collection.

Govt. Br., p. 13.

Gallo relies on Witters v. United States, 70 App.D.C. 316, 106 F.2d 837 (1939), which involved a conviction for receiving stolen property, to wit, a bicycle. To prove that Witters knew the bicycle was stolen, the Government proved that on three separate occasions within about two weeks after the first bicycle was received Witters purchased other stolen bicycles from three different boys. In holding these subsequent acquisitions of stolen property to be inadmissible to prove scienter the court stated:

the subsequent happenings cannot throw light upon the knowledge of the defendant on that prior occasion. The opinion of the court is that upon the question of knowledge the cases, properly interpreted, make evidence of other offenses admissible only when it relates to prior offenses or to situations in which the offenses occurred both prior and subsequent to the offense charged in the indictment, and that, consequently, the admission of the evidence of subsequent offenses for the purpose of showing knowledge was fatally prejudicial and necessitates a reversal of the judgment.

106 F.2d at 840 (footnotes omitted). The court thus recognized that evidence is admissible of ". . . offenses (which) occurred both prior and subsequent to the offense charged in the indictment." The testimony here was of that character, i. e., that these same thieves had sold stolen property to Gallo before the sale of the coins (Tr. 82, 146, 147-48); that they had "told him" on prior occasions that the goods they were selling him had been stolen (Tr. 146, 147-48); and there was evidence that they sold him stolen property, the stamp collection, subsequent to the sale of the gold coins with which he was charged (Tr. 80, 120-21, 161). Witters, thus, recognizes the admissibility of the evidence relating to the subsequent purchases as well as that of the prior purchases. We also believe that the above quoted holding of Witters should be limited to its facts, i. e., to situations where the subsequent purchases are not connected or related to the offense being tried. Wharton states the rule, in analogous cases, to be:

In a prosecution for receiving stolen property, guilty knowledge is the gist of the offense, and evidence of other crimes is admissible to establish such knowledge. It is permissible to show that the accused had . . . purchased other property which was stolen from the same person either before or after the crime charged. (Footnotes omitted.)

1 Wharton's Criminal Evidence § 244, pp. 552-53.

The cited case is State v. Addison, 249 Iowa 905, 87 N.W.2d 916, 920 (1958), where testimony of a subsequent purchase of a typewriter stolen at the same time as the movie projector charged in the indictment was held admissible to prove intent and guilty knowledge. To the same effect is State v. Boyd, 195 Iowa 1091, 191 N.W. 84, 86 (1922), which involved a series of transactions between the same parties both before and after the offense concerning which the defendant was convicted. The majority rule in the state courts is that evidence of similar transactions subsequent to the charged receiving of stolen property is admissible on the issue of guilty knowledge or intent provided they are not too remote in point of time. ³

As to the contention that the evidence is not relevant because a subsequent act cannot be probative of a prior state of mind, we believe that it can be in circumstances where the subsequent act is recent and in some material way is connected with the prior event. This is such a case. The testimony disclosed that the stamp collection was stolen by the same thieves at the same time that they stole the coins; the stamps were originally offered to Gallo at the same time as the coins but at that time Gallo declined buying them, saying, ". . . he couldn't handle them right then, to bring them in later " (Tr. 80, 119-120, emphasis added); and pursuant to this direction the thieves did bring in the stamps about six weeks or two months later (Tr. 80, 120), when Gallo bought them. Therefore, the purchase of the stamps by Gallo from the same thieves a short time after the coin purchase was merely an acceptance of an earlier proffer Gallo had made to the same men to purchase the stolen stamps. The stamp sale was thus connected with the coin sale in several respects and we find the testimony thereof to be relevant and probative on Gallo's state of mind as it existed at the time he transported the goods in interstate commerce.

Thus, we do not read Gallo's interpretation of Witters as controlling this case. United States v. Braverman, 376 F.2d 249 (2d Cir. 1969) also holds that evidence of prior and subsequent acts are admissible and probative of the knowledge required by 18 U.S.C. § 2314. See United States v. Boone, 470 F.2d 908 (4th Cir. 197...