U.S. v. Ziskind

• Citation: 491 F.3d 10
• Decision Date: 20 June 2007
• Docket Number: No. 03-2645.,03-2645.
• Parties: UNITED STATES of America, Appellee, v. Bruce Scott ZISKIND, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

491 F.3d 10

UNITED STATES of America, Appellee, v. Bruce Scott ZISKIND, Defendant, Appellant.

No. 03-2645.

United States Court of Appeals, First Circuit.

Heard January 12, 2007.

Decided June 20, 2007.

Michael J. Traft, with whom Carney & Bassil, P.C., was on brief, for appellant.

Kirby A. Heller, Attorney, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Fred M. Wyshak, Jr., Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Bruce Scott Ziskind was indicted in 2002 of one count of conspiracy to steal goods traveling in interstate commerce and two counts of receiving stolen interstate shipments of goods. 18 U.S.C. § 371 (conspiracy); 18 U.S.C. § 659 (receipt of stolen goods). A jury convicted Ziskind on all counts of the indictment, and he was sentenced to 63 months of imprisonment on each count, to be served concurrently. Ziskind appeals his conviction and sentence.¹

In early 1995, Ziskind and his associate, John "Mick" Murray, devised a scheme to steal computer equipment from local United Parcel Service (UPS) shipments. They recruited, Daniel Gilday, a UPS worker, and told him to steal computer equipment and pass it along to Ziskind. Ziskind owned an electronics company through which he sold the stolen merchandise and shared a portion of the profits with Murray and Gilday. On several occasions, Ziskind searched some UPS trucks for merchandise himself and assisted Gilday in recruiting other UPS drivers for the scheme.

Eventually, Gilday became disenchanted with his cut of the profits, so he found another buyer, Robert Powell, who paid better. On occasion, Gilday still provided goods to Ziskind and Murray. Soon, however, Ziskind noticed that Gilday's supply had diminished and complained to Gilday about it.

In January 1997, Gilday stole a shipment of semiconductors that the United States Navy was returning to Alamo Computer in Massachusetts and delivered them to Murray. Ziskind initially claimed that the semiconductors were worthless but later learned that they were very valuable. This led to a dispute between Ziskind and Gilday, which Ziskind resolved by paying Gilday $5,000. In May 1997, Gilday stole a shipment of video cards from a company called Osicom Technology and, after unsuccessfully trying to sell them to Powell, sold them to Ziskind. Soon after this transaction, Gilday was arrested. Ziskind and Murray were also subsequently arrested and indicted for their involvement in the scheme.

At trial, Ziskind conceded that he had joined the conspiracy with Murray and Gilday in 1995, but left the conspiracy a few months later, and therefore had nothing to do with the 1997 thefts. Since the charges against Ziskind had a five-year statute of limitations, see 18 U.S.C. § 3282, he asserted that he was entitled to an acquittal because the statute of limitations had run.

On appeal, Ziskind's only challenge to his conviction concerns the admission of a stipulation that his co-conspirator, John Murray, had previously pleaded guilty to the counts of the indictment with which he was being charged. Ziskind argues, on appeal, that the admission of this stipulation violated his Sixth Amendment right to confront adverse witnesses under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The government argues that Ziskind waived this argument by agreeing to the stipulation or, at a minimum, forfeited it by not raising a Crawford-type claim below.² See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (distinguishing between waiver and forfeiture). Ziskind claims that he fully preserved the argument. To put this standard of review issue into context, some additional background is required.

Ten days before trial, the government filed a motion in limine to admit Murray's plea allocution into evidence. The district court held a hearing on the motion, at which time Ziskind objected to the introduction of the allocution. He claimed that its admission presented "a Bruton situation" because the allocution could implicate him in the crime. See United States v. Smith, 46 F.3d 1223, 1227 (1st Cir.1995) ("Bruton error occurs where the codefendant's hearsay statement expressly implicates the defendant [in the crime] . . . ." (internal quotation marks omitted)).

The district court found Ziskind's objection well-taken and proposed to the parties that, instead of introducing the allocution, they stipulate that Murray had previously pleaded guilty to the counts of the indictment with which Ziskind was charged. The court also promised to instruct the jury that the stipulation was not evidence that Ziskind had participated in the conspiracy. Ziskind's counsel stated that "he probably would not have an objection to that" but "that he would want to see the wording." Later in the hearing, Ziskind's counsel reiterated that he would "have no objection as long as Mr. Ziskind's name is kept out," but that he would "object to . . . the use of his name as being involved in the conspiracy." Thus, counsel again aired his Bruton objection.

At the end of the government's case, it introduced the stipulation, which stated, "The parties hereby stipulate and agree that on July 1, 2002 John Murray, AKA `Mick' Murray pled guilty to his participation in the conspiracy alleged in Count 1 and to the thefts alleged in Counts Two and Three." The stipulation was signed by Ziskind and his counsel, and Ziskind did not object upon its admission. The district court did not offer a limiting instruction concerning the use of the stipulation at this juncture.

After the jury retired to deliberate, it asked to see the stipulation. At that time, the district court consulted with the parties, and Ziskind's counsel restated his concern about the Bruton problem, asking that, if the stipulation went to the jury, the jury also be told that the stipulation does not prove Ziskind's involvement in the conspiracy. The court questioned whether there had ever been an objection to the stipulation, to which Ziskind's counsel replied, "I know I argued to you [that] this is Bruton." The court then recalled that objection, and Ziskind proceeded to try to broaden it by claiming that the objection was not limited to Bruton. Rather, according to Ziskind's counsel, the objection was to the admission of the stipulation in its entirety because he did not have the chance to cross-examine Murray about the plea. Before providing a copy of the stipulation to the jury, the court provided a limiting instruction stating that the stipulation could be used as evidence that a conspiracy existed in 1997 but not that Ziskind had been involved.

The government's contention that Ziskind waived his Crawford objection by agreeing to the stipulation poses a difficult question. On the one hand, no contemporaneous objection was lodged when the signed stipulation was admitted into evidence. On the other hand, throughout the proceeding, Ziskind claimed that the admission of the stipulation presented a possible Bruton problem to the extent that it implicated Ziskind in the conspiracy. Waiver, which ordinarily precludes any appellate consideration of an issue, requires a showing that the party intentionally relinquished or abandoned an argument. See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002). The record can be read to support Ziskind's contention that he did not agree, without reservation, to the admissibility of the stipulation. Thus, a reasonable argument could be made, that Ziskind at least preserved an objection to the stipulation under Bruton and did not intentionally relinquish any appellate argument concerning the stipulation.

But, regardless of whether a Bruton objection was preserved, Ziskind has not argued Bruton on appeal. Instead, he has argued that the admission of the stipulation was unconstitutional under Crawford because it permitted the introduction of testimonial hearsay. It is settled law in this circuit "that an objection on one ground does not preserve appellate review of a different ground." United States v. Mercado, 412 F.3d 243, 247 (1st Cir.2005). No Crawford-type argument was made either during the pre-trial hearing when the stipulation procedure was discussed or when the government offered the stipulation at the close of its case. Indeed, at the pretrial hearing, Ziskind expressly stated that he had no objection to the admission of the stipulation so long as his name did not appear and he signed the stipulation that was eventually read to the jury. Ziskind did make something resembling a Crawford-type argument at the end of the discussion about the jury's request to see the stipulation; but at that point, it was too late. See United States v. DeLeon, 187 F.3d 60, 65 (1st Cir.1999) (concluding that objection to admission of evidence is not preserved for appellate review where the objection is not made until after the introduction of the evidence); United States v. Tse, 135 F.3d 200, 209 (1st Cir.1998) (similar). Thus, Ziskind's Crawford argument is forfeited, and we therefore review it only for plain error.

To warrant reversal of his conviction, Ziskind must show: (1) the occurrence of an error; (2) that the error is obvious or clear under current law; (3) that the error affected his substantial rights; and (4) that it seriously impaired the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir.2006). As we explain below, Ziskind is not entitled to relief under this standard of review.

In Crawford, the Supreme Court overruled prior precedent to hold that the Confrontation Clause of the Sixth Amendment prohibits the government from introducing testimonial hearsay against a defendant in a criminal trial. Crawford, however, was not decided until after Ziskind's trial, and the district court...