U.S. v. Richter, 617

• Citation: 826 F.2d 206
• Decision Date: 20 August 1987
• Docket Number: No. 617,D,617
• Parties: UNITED STATES of America, Appellee, v. James RICHTER, Defendant-Appellant. ocket 86-1393.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 206

826 F.2d 206

UNITED STATES of America, Appellee, v. James RICHTER, Defendant-Appellant.

No. 617, Docket 86-1393.

United States Court of Appeals,

Second Circuit.

Argued Jan. 6, 1987.

Decided Aug. 20, 1987.

Herald Price Fahringer, New York City (Diarmuid White, New York City, on the brief), for defendant-appellant.

Larry Krantz, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y. and Matthew E. Fishbein, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Following a jury trial before Judge Bramwell in the United States District Court for the Eastern District of New York, James Richter was convicted of knowingly possessing and disposing of $54,250 in illicitly obtained traveler's checks. 18 U.S.C. Secs. 2113(c) and 2. He contends on appeal that he is entitled to a new trial because of prosecutorial misconduct and because the district court erred in permitting the Government to call a rebuttal witness. Because we believe that the prosecutor's conduct constituted plain and prejudicial error, we reverse.

The principal Government witness was Raymond Von Braunsberg, an alcoholic who had been fired from numerous jobs for mismanagement and incompetence and who had successfully concealed his work record from subsequent employers. Richter became acquainted with Von Braunsberg in 1978, when Von Braunsberg was manager of a branch bank with which Richter did business. They became close, personal friends. Von Braunsberg arranged bank loans for Richter and paid his overdrafts. Richter, in turn, made personal loans to Von Braunsberg. Their personal relationship continued after Von Braunsberg lost his bank job.

In February 1983, Von Braunsberg became branch manager of another bank. That spring, he was instructed to inventory and destroy the bank's Thomas Cooke traveler's checks and to confirm with Thomas Cooke by letter that the checks had been destroyed. Although Von Braunsberg informed Thomas Cooke that $54,250 in checks had been shredded, he had in fact concealed them in his office desk drawer. Before Von Braunsberg left for vacation in mid-July 1983, he put the checks in an attache case and took them home. He expected he soon would be fired once again, and, shortly thereafter, he was.

Von Braunsberg testified that the day after he was fired he took the traveler's checks to Richter's apartment, told Richter he had been fired and requested a loan of $200 or $250. He showed Richter the traveler's checks and explained how he had taken them from the bank. When Richter offered to pass the checks on to a contact for resale, Von Braunsberg left the checks with him. According to Von Braunsberg, he decided on the following day to destroy the checks, and he arranged with Richter to pick them up. However, after retrieving the attache case from Richter's apartment, he found that it contained only magazines. He called Richter to inquire about the missing checks and was informed that they had been destroyed.

It is undisputed that the checks had not been destroyed. Most of them turned up in Florida during August and September of 1983. In November 1983, Von Braunsberg admitted to FBI Special Agent Frank Lazzara that he had taken the checks from the bank and passed them on to Richter.

Lazzara testified that, when he and FBI Agent Douglas Corrigan interviewed Richter, Richter told them that he had received a call from Von Braunsberg in early August telling him he had been fired and asking for a loan and help in finding a new job. Richter also stated that, when Von Braunsberg arrived at his apartment, he opened an attache case and showed Richter the traveler's checks. Von Braunsberg sought and received permission to leave the checks with Richter because Von Braunsberg believed his apartment might be searched by the police. Richter told Lazzara that he decided to destroy the checks, and he showed Lazzara the trash chute down which he claimed to have thrown them. He stated that he then put magazines in Von Braunsberg's attache case, which Von Braunsberg came and got. Richter also claimed that, when Von Braunsberg later called to ask about the checks, he told Von Braunsberg they had been destroyed.

Richter, testifying on his own behalf, said that Von Braunsberg told him he had the checks in his possession for the purpose of destroying them. Leaving "to meet somebody", Von Braunsberg asked if he could keep the attache case at Richter's apartment for one or two days. The next day, Von Braunsberg returned to retrieve the checks and asked to borrow some of Richter's magazines. He put the magazines inside the attache case with the checks and left.

Richter admitted he lied to Agent Lazzara about destroying the checks, because Von Braunsberg had said he was going to destroy them "[a]nd I had no reason to doubt him." He reasoned:

I believed that I was doing something for a man whom I in no way believed was guilty, a man who had all these other problems, and a man who had told me that he had planned to destroy them.

Richter denied telling Lazzara that Von Braunsberg showed him the traveler's checks when he first arrived at Richter's apartment; that Von Braunsberg told him he had been fired; that he, not Von Braunsberg, had placed the magazines in Von Braunsberg's attache case; and that Von Braunsberg asked to leave the checks at his apartment because he was afraid the police might search his home and find them. He also denied showing Lazzara the kitchen, where he claimed to have ripped up the traveler's checks, or the trash chute, where he claimed to have thrown them.

Pointing to the discrepancies between Lazzara's testimony concerning Richter's statements to him and Richter's testimony on the stand, the prosecutor asked Richter in a series of questions to testify that Lazzara was either mistaken or lying. This was improper cross-examination. Determinations of credibility are for the jury, Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944), not for witnesses, Greenberg v. United States, 280 F.2d 472, 475 (1st Cir.1960). Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper. See People v. Montgomery, 103 A.D.2d 622, 481 N.Y.S.2d 532 (1984) (per curiam); People v. Davis, 112 A.D.2d 722, 724, 492 N.Y.S.2d 212 (1985) (mem.).

Because the prosecutor in this case gave the defendant an alternative of branding Lazzara's testimony as either a lie or a mistake and because no objection was taken by defense counsel, we might be inclined to overlook the impropriety if that were defendant's sole claim of error. However, the Assistant United States Attorney did not stop there. Over the objection of defense counsel, the AUSA called FBI Agent Corrigan as a rebuttal witness for the purpose of corroborating Lazzara's testimony, which the prosecutor already had forced the defendant to label as false.

Then, in his summation, which followed closely upon...