U.S. v. Golomb, 590

• Decision Date: 28 January 1985
• Docket Number: D,No. 590,590
• Citation: 754 F.2d 86
• Parties: UNITED STATES of America, Appellee, v. Benzion GOLOMB, Defendant-Appellant. ocket 84-1248.
• Court: U.S. Court of Appeals — Second Circuit

Page 86

754 F.2d 86

UNITED STATES of America, Appellee, v. Benzion GOLOMB, Defendant-Appellant.

No. 590, Docket 84-1248.

United States Court of Appeals, Second Circuit.

Argued Jan. 8, 1985.

Decided Jan. 28, 1985.

Stanley M. Meyer, New York City (Meyer, Light & Diesenhouse, Brooklyn Heights, N.Y., on brief), for defendant-appellant.

Kenneth Roth, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Stacey J. Moritz, Asst. U.S. Atty., New York City, on brief), for appellee.

Before NEWMAN, PRATT and PECK, ^* Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The only issue of substance raised on this appeal concerns the imposition of 11 sentences consecutively for an aggregate sentence of 26 years upon a first offender convicted of a series of property crimes. Benzion Golomb appeals from a judgment of the District Court for the Southern District of New York (Mary Johnson Lowe Judge ) convicting him, after a jury trial, on 12 of 13 counts submitted to the jury.

The charges were based on Golomb's extensive activity as a dealer in stolen property. The evidence overwhelmingly established that he was the principal in a "fencing" operation that purchased items stolen during a series of residential and commercial burglaries. Count 1 charged a conspiracy to commit various substantive offenses relating to the fencing operation. 18 U.S.C. Sec. 371 (1982). Counts 2 and 3 charged receipt of stolen Treasury checks. 18 U.S.C. Sec. 641. Count 4 charged receipt in interstate commerce of the proceeds of a series of residential burglaries. 18 U.S.C. Sec. 2315. Counts 5 and 6 charged mail fraud based on Golomb's role in assisting two of his confederates fraudulently to apply for unemployment benefits. 18 U.S.C. Sec. 1341. Counts 7 through 11 charged interstate transportation of five checks that had been stolen and forged. 18 U.S.C. Sec. 2314. Count 12 charged use, in transactions affecting interstate commerce, of a stolen credit card. 15 U.S.C. Sec. 1644(a) (1982). Golomb was acquitted on a count charging bribery of a witness. 18 U.S.C. Sec. 201(d).

I. The Conviction

Golomb's challenges to his conviction are without merit. Initially he contends that the counts were improperly joined in a single indictment, see Fed.R.Crim.P. 8(a); and that severance was improperly denied, see id. 14. Plainly all of the counts involving stolen property arose out of a common scheme and were properly joined. See United States v. Gordon, 655 F.2d 478, 484-85 (2d Cir.1981); United States v. Werner, 620 F.2d 922, 926-27 (2d Cir.1980). Though the mail fraud counts relating to the application for unemployment benefits encompassed conduct different from the receipt of stolen property, their relationship to the overall scheme, sufficient to permit joinder, was made manifest by the evidence that Golomb assisted the fraud in return for his confederates' agreement to continue supplying stolen property. It was not an abuse of discretion to deny severance because of claimed prejudice. See United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984).

There was no violation of the Speedy Trial Act. 18 U.S.C. Sec. 3161 et seq. (1982). The District Court properly concluded that a brief period of time was excludable in the interests of justice because of the need to complete ongoing grand jury investigations that were unraveling Golomb's complex transactions. Id. Sec. 3161(h)(8)(B)(ii). See United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984).

Golomb next contends that the Government breached a limited use immunity agreement. After indictment, Golomb, accompanied by his counsel, voluntarily agreed to be interviewed by an Assistant United States Attorney on September 6, 1983. The interview was conducted pursuant to a written agreement signed by Golomb, his lawyer, and the prosecutor on September 6. The agreement provided that "[w]ith respect to the meeting [between the prosecutor and Golomb] to be held on September 6, 1983" no statements made by Golomb would be used in the Government's direct case, but that information derived from such statements could be used without limitation and the statements themselves could be used in cross-examination of the defendant or in the Government's rebuttal case.

At trial the prosecution did not offer any statement of the defendant made at the September 6 meeting. However, testimony was elicited from a government agent concerning statements made by Golomb, with his counsel present, on November 29, 1983, while the agent was obtaining the defendant's fingerprints. No objection was made that these statements violated the September 6 agreement. Another agent testified to statements made by Golomb, with his counsel present, at a meeting with the prosecutor on December 29, 1983. After this testimony, defense counsel moved to exclude Golomb's statements of November 29 and December 29, claiming violation of the September 6 agreement. The District Judge deferred a ruling, pointing out that if the defendant testified, as his counsel's opening statement had represented he would, any question of compliance with the September 6 agreement would disappear. The defendant did testify, and the use immunity claim was not further pursued.

In some circumstances, there might be force in the defendant's contention that once the Government makes a use immunity agreement, even though limited to statements obtained on a specified date, the elicitation of statements from the defendant at a subsequent meeting should be preceded by a caution that the agreement is no longer in effect. That would avoid ambiguity as to whether or not the subsequent meeting was a continuation of the initial meeting. There is no ambiguity in this case, however, since the interval between the meeting specified in the agreement and the next occasion when defendant's statements were obtained was nearly two months. Moreover, the statements were properly admissible, once the defendant testified, even if the agreement were applicable.

Finally with respect to the conviction, there is no merit to defendant's claim that the trial judge erred in declining to interrupt jury deliberations to permit the introduction of photographs taken as a result of a suggestion by the judge. Though the photographs would have supported the defendant's version of a dispute in the evidence, the dispute concerned a minor point, the defense was responsible for the delay in obtaining the photographs, and a judge has wide discretion not to interrupt jury deliberations, United States v. Bayer, 331 U.S. 532, 538-39, 67 S.Ct. 1394, 1397-98, 91 L.Ed. 1654 (1947). Defense counsel did not request that completion of the evidence be deferred until the photographs could be obtained.

II. The Sentence

Sentences were imposed with respect to the 12 counts on which Golomb was found guilty as follows: Count 1, the overall conspiracy, 4 years and a fine of $10,000; Counts 2 and 3, receipt of stolen Treasury checks, 2 years on each count; Count 4, receipt of burglary proceeds, 5 years; Counts 5 and 6, mail fraud, 2 years on each count; Counts 7-11, transportation of stolen checks, 2 years on each count; Count 12, use of stolen credit card, 1 year. The 2-year sentences on Counts 5 and 6 run concurrently with each other. All of the other sentences, including the 2 years imposed for both Counts 5 and 6, run consecutively. Thus, 11 sentences have been imposed consecutively for a total term of 26 years. In addition, Golomb was fined $10,000 and ordered to pay restitution of approximately $102,000.

Golomb contends that the total prison term of 26 years, imposed on a defendant with no prior convictions, is so disproportionate to the property offenses for which he was convicted as to violate the proportionality component of the Eighth Amendment's prohibition on cruel and unusual punishments. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); United States v. Ortiz, 742 F.2d 712 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984). The Government responds that none of the separate sentences can possibly be considered to be cruel and unusual and that the severity of the cumulative sentence simply reflects the fact that Golomb has committed numerous crimes.

Nearly 100 years ago the Supreme Court of Vermont expressed the view that neither the state nor the federal prohibition on cruel and unusual punishment would be violated by the imposition of consecutive sentences for a series of burglaries even if the consequence was to imprison a defendant for life. O'Neil v. State, 58 Vt. 140 (1885). That observation was made in the course of upholding a fine of $6,140, plus costs of $498, for a series of 307 bootlegging offenses; it was a condition of the sentence that upon the defendant's failure to pay the fine, he would be imprisoned at hard labor for three days for each dollar of the fine--a total of 19,914 days or 54 1/2 years. Upon review by the United States Supreme Court, the Court stated that it would "forbear consideration of [the] question" whether cumulation of sentences would raise an issue under the federal Constitution because the federal claim had not been assigned as error and the Eighth Amendment had not then been held applicable to the States. O'Neil v. Vermont, 144 U.S. 323, 331-32, 12 S.Ct. 693, 696-97, 36 L.Ed. 450 (1892).

Since that time federal courts have sustained against Eighth Amendment challenges severe prison terms resulting from the imposition of consecutive sentences. United States ex rel. Darrah v. Brierley, 415 F.2d 9, 13 (3d Cir.1969) (five consecutive 10- to 20-year sentences for five...