U.S. v. Levy, 866

• Citation: 578 F.2d 896
• Decision Date: 21 June 1978
• Docket Number: D,No. 866,866
• Parties: 3 Fed. R. Evid. Serv. 886 UNITED STATES of America, Appellee, v. Walter LEVY, Appellant. ocket 78-1010.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 896

578 F.2d 896

3 Fed. R. Evid. Serv. 886

UNITED STATES of America, Appellee, v. Walter LEVY, Appellant.

No. 866, Docket 78-1010.

United States Court of Appeals, Second Circuit.

Argued May 4, 1978.

Decided June 21, 1978.

Gerald L. Shargel, New York City (Fischetti & Shargel, New York City, of counsel), for appellant.

Henry H. Korn, Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., and Richard Weinberg, Asst. U. S. Atty., S. D. N. Y., New York City, of counsel), for appellee.

Before MOORE, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Walter Levy appeals from a judgment of conviction entered after a jury trial in the Southern District of New York. Levy, along with Fred Bernstein and John Glick, was named in a three-count indictment. Count One charged that the three conspired to violate the federal narcotics law, 21 U.S.C. § 846. Count Two charged that the defendants distributed and possessed with intent to distribute heroin on May 28, 1977, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). Count Three charged Levy and Bernstein with another violation of 21 U.S.C. § 841 on May 29, 1977. Levy was tried alone after his co-defendants pleaded guilty, and the jury found him guilty on Counts One and Three, and not guilty on Count Two. ¹

Acting on information from Glick and Bernstein, Agents White, Rice, and DiGravio of the Drug Enforcement Administration ("DEA") arrested Levy in his hotel room in Manhattan early on the morning of May 30, 1977. The agents gave Levy the customary Miranda warnings. Levy thereupon made various statements to the agents, volunteering that he had cooperated with the Federal Bureau of Narcotics ("FBN") in the past. After arriving at DEA headquarters shortly thereafter, Levy again made statements to Agent DiGravio. Later that day, during a prearraignment conference, Levy again made statements to Assistant United States Attorney Cooney. On the following day, after his arraignment, he returned to DEA headquarters with his lawyer and had a further conversation with Agent DiGravio, who suggested to Levy, in response to his offer to cooperate, that he get in touch with DEA Agent Day in Los Angeles. Some nine days later, while released on bail, Levy did approach Day in Los Angeles and had a discussion with him during which Levy offered to cooperate with the DEA. During the course of the conversation, Levy volunteered some incriminatory statements.

Levy contends on appeal that certain of his statements should not have been admitted into evidence. The jury could have found the following facts without considering those statements.

Bernstein testified that he repeatedly telephoned Levy in California and asked Levy to supply heroin for a sale Bernstein could make to Glick in New York, and that Levy finally purchased over an ounce of heroin in California and brought it to New York. He delivered a sample and then the entire amount to Bernstein, 18 grams to be resold to Glick for $90 per gram. ² The arrests occurred when Glick later delivered the heroin to a DEA informant.

Bernstein also testified that after his arrest he decided to cooperate with the DEA, and had a telephone conversation with Levy which was recorded, with his consent, by DEA agents. In the tape recording, Bernstein told Levy that he had the money and Levy invited Bernstein to bring the money to Levy's hotel room.

Glick testified to his role in the conspiracy, corroborating the parts of Bernstein's testimony that had related to Glick's side of the transaction. DEA Agent Rice, who as an undercover agent managed the informant to whom Glick eventually delivered the heroin, testified that he was present when Glick delivered the sample to the informant, and that Glick said at that time that Bernstein was at the Hilton Hotel with "the main connection from L.A." Rice also testified that at the time of Glick's arrest, Glick identified Bernstein as the source of the heroin, and offered to cooperate with the DEA. DEA Agent White testified that at the time of Levy's arrest, White and the other DEA agents seized small amounts of heroin and cocaine found in Levy's hotel room.

In addition to the evidence of the foregoing, the following oral statements by Levy were admitted. White testified that after Levy had been informed of his right to remain silent and to have counsel, Levy made various statements, among them that he had purchased the heroin seized from Glick from someone named Julio in California. Assistant United States Attorney Cooney testified that, after a thorough cautioning about his rights, Levy told Cooney that he had obtained the heroin in California for $800, that "this was the first time that he and Freddie Bernstein had ever tried to sell any heroin", and that he had agreed to the deal only after Bernstein's repeated telephone calls. With appreciation of the evidence against Levy, we turn now to his claims of error.

Levy contends, first, that the trial court erred in admitting his statement that he had cooperated with the FBN in the past. In his opening statement, the prosecutor told the jury that they would hear evidence of statements made by Levy that he had cooperated with the FBN in a "prior case". Then Agent White testified that Levy made the statement at the time of his arrest, Assistant United States Attorney Cooney testified that Levy made such a statement during the pre-arraignment conference, and Agent Day repeated that testimony in substance.

Appellant contends that the reference to his cooperation with the Government in a prior case necessarily implied that he had been arrested before, that such an implication was tantamount to proof of a prior crime or act, and that such proof was inadmissible because its only relevance was to show his bad character. While it would have been better for the prosecutor to have omitted the reference in his opening statement, the error was cured by subsequent developments.

In his own opening statement appellant's counsel suggested that the evidence would show that Levy was a heroin addict but not a dealer, thus explaining the heroin found in Levy's hotel room, and he pressed that theory in his cross-examination of Bernstein, the Government's first witness. Proof of Levy's prior cooperation in "initiating cases" for the FBN was relevant to rebut the defense that he was only a user, since the jury could well conclude that a mere user could have been of little assistance to the FBN in their investigations.

Levy argues, however, that even if the admission was relevant, it violated Fed.R.Evid. 404, because the jury could not help concluding that his prior cooperation had resulted from the commission of a prior crime. ³ This point was first raised as an objection to the prosecutor's mention of the defendant's prior cooperation, culminating in a motion for a mistrial when such mention was made a second time. We need not consider whether, as an abstract matter, prior crime evidence to show extensive knowledge of the drug business would have been admissible under Rule 404(b), because the defendant refused an offer of instructions that would have eliminated the inference of a prior crime. There is no doubt that if the defendant had requested an instruction that prior cooperation does not mean that the defendant committed another crime, such an instruction would have been given. In a colloquy with counsel at the close of the first day of the trial, the trial judge said:

"I will now state for the record that whether or not the reference to the 'prior case' is sufficient to grant a mistrial on that, I am willing to give Any instruction that you request to try to wipe that out of the case . . . . People sometimes cooperate with the Bureau of Narcotics without being arrested . . . . (T)here are a few . . . people who cooperate just for the fun or the money of cooperating." Tr. 59 (Emphasis added)

The defense counsel, however, neither requested a curative instruction nor accepted the trial judge's offer to give one.

Despite counsel's misgivings, such an instruction would have no more aggravated the problem than does the common instruction that the failure of a defendant to take the stand may not be held against him. Cf. Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (instructing jury not to draw adverse inferences from defendant's failure to testify, despite defense counsel's request that charge be omitted, held not a violation of defendant's constitutional right against self-incrimination and right to counsel). Though such cautionary instructions necessarily draw the jury's attention to an illicit inference, the court must assume both the jury's prior awareness of the inference and their ability to heed the instruction. Lakeside v. Oregon, supra, 98 S.Ct. at 1095. Cautionary instructions in the present case could have forestalled any problem under Fed.R.Evid. 404, since the prosecution added no fillip to the mere statement concerning cooperation, a statement which did not provide such obvious proof of a prior criminal record that a cautionary instruction would not have eliminated the danger. We hold, therefore, that even if the admission of this evidence without proper limiting instructions would have been erroneous under Rule 404, the refusal of the defense to accept a curative instruction in this case forecloses the point on appeal. See United States v. Splain, 545 F.2d 1131, 1133 (8th Cir. 1976); United States v. Czarnecki, 552 F.2d 698, 701 (6th Cir.), Cert. denied, 431 U.S. 939, 97 S.Ct. 2652, 53 L.Ed.2d 257 (1977).

There was testimony also concerning offers by Levy to cooperate in the future. Agents White, DiGravio, and Day each testified that Levy had offered to cooperate with the DEA in future investigations. ⁴ We think that such an offer evidences a consciousness of guilt and is relevant to prove the charge against Levy.

Appellant contends, however, that these statements were made by him in the...