United States v. Blackwood

• Decision Date: 01 March 1972
• Docket Number: No. 556,71-1952.,Dockets 71-1925,557,556
• Citation: 456 F.2d 526
• Parties: UNITED STATES of America, Appellee, v. Robert BLACKWOOD and Tobias Cohen, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

456 F.2d 526 (1972)

UNITED STATES of America, Appellee, v. Robert BLACKWOOD and Tobias Cohen, Appellants.

Nos. 556, 557, Dockets 71-1925, 71-1952.

United States Court of Appeals, Second Circuit.

Argued January 27, 1972.

Decided March 1, 1972.

John S. Martin, Jr., New York City (Segal & Hundley, New York City, on the brief), for appellant Tobias Cohen.

Wesley R. Asinof, Atlanta, Ga. (Asinof, Smith & Eberhardt, Atlanta, Ga., on the brief), for appellant Robert Blackwood.

John J. Kenney, Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S. Atty., S. D. N.Y., John W. Nields, Jr., Asst. U.S. Atty., New York City, on the brief), for appellee.

Before FRIENDLY, Chief Judge, and ANDERSON and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Robert Blackwood and Tobias Cohen were convicted by a jury before Judge Constance Baker Motley of transporting in interstate and foreign commerce securities of a value of more than $5,000, knowing the same to have been stolen, 18 U.S.C. § 2314, and of conspiracy to do so, 18 U.S.C. § 371. They were sentenced to concurrent terms of five years on each of the five counts of the indictment. On appeal, they challenge the admissibility of certain evidence and the propriety of restrictions placed on their cross-examination of the key government witness. We affirm.

The evidence presented at trial established that in August 1967, Oliver Coleman, an Atlanta mortgage-broker, was approached in New York City by Fred Seely, an acquaintance of his, and Tobias Cohen, and asked if he "could handle the sale of stocks listed on the New York Stock Exchange." Coleman's response was that he could not, but that Robert Blackwood, his Atlanta attorney, "had his own security company and would be in a position to" dispose of the stock. Some six weeks later, Coleman in Atlanta received telephone calls from Seely and Cohen telling him to come to New York to pick up the securities for delivery to Blackwood in Atlanta. Coleman traveled to New York and on October 12 received a sealed manila envelope containing several hundred shares of stock of the Coca Cola Bottling Company, Northwest Airlines, and of the General Electric Company, issued to Francis I. duPont & Co. and bearing duPont's machine stamp endorsements. The envelope was taken by Coleman to Atlanta and there delivered to Blackwood, who on the following day went to Nassau, British West Indies, where the stock was sold through use of a numbered account for approximately $67,550. After deducting his fee, Blackwood deposited the proceeds in a sealed manila envelope, which Coleman carried to Cohen and Seely in New York.

On his return trip from New York, Coleman carried an even bigger load—almost $300,000 worth of securities of such companies as IBM, General Electric, Polaroid, Republic Steel and Texaco—for delivery to Blackwood. Soon after receiving this package, Blackwood flew to Zurich, Switzerland, opened a numbered bank account, and deposited the stock for sale. A week later, after a brokerage house employee's observation that the certificates did not bear a tax stamp had precipitated an investigation, it was discovered that both batches of securities sold by Blackwood had been stolen from F. I. duPont & Company.

The chief government witness against the appellants was Coleman, who had pleaded guilty to one count of the indictment a few days before the trial was to begin. Coleman testified at length and in detail to his meetings with Cohen and Seely in New York and with Blackwood in Atlanta, and to his role as courier between New York and Atlanta. The defense case relied almost entirely on the testimony of the appellants. Cohen contended that his meetings with Seely and Coleman had been for a legitimate business purpose having nothing to do with the sale of securities, while Blackwood conceded that he had engaged in the sale of the stolen securities in Nassau and Zurich but denied any knowledge that the securities had been stolen.

Appellant Blackwood's first argument concerns Judge Motley's denial without a hearing of his motion to suppress certain evidence. Blackwood testified on his own behalf that he was unfamiliar with certain types of securities transactions, and that he had received only a small portion of the proceeds from the sale of the first group of stocks. In an effort to impeach him, the government offered in evidence the transcript of a tape-recorded conversation in which Blackwood demonstrated his knowledgeability in the area of stocks and bonds, and in which he discussed the methods by which tainted stock could be sold outside the country to minimize the possibility of tracing. In addition, the government offered a portion of Blackwood's office notebook which indicated that he had received a substantially larger bite of the monies raised by the first sale of stolen stock than he had originally admitted. At trial Blackwood sought for the first time to suppress both items, claiming that they had been illegally seized from his ex-wife in 1967 pursuant to a defective search warrant. Judge Motley ruled the motion untimely, however, relying on F.R.Cr.P. 41(e), which states that such motions to suppress "shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing."

We agree that Blackwood's motion to suppress was not timely made, and there is no suggestion that he was unaware until trial either of the occurrence of the search or the government's intention to use the fruits thereof. Moreover, the evidence, even if illegally seized, would still have been admissible for the limited purpose of impeachment. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954); cf. Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

The appellants' second ground for reversal relates to Judge Motley's refusal to allow Coleman to be recalled for further cross-examination. On Coleman's direct examination, the government elicited that Coleman had pleaded guilty to one of the substantive counts of the indictment but had not yet been sentenced, a procedure we have permitted on the ground that to defer the introduction of such evidence as to the witness' motivation to favor the government until it is brought out on cross-examination by the defendant might give the jury the unjustified impression that the government was concealing this relevant fact. United States v. Del Purgatorio, 411 F. 2d 84, 87 (2d Cir.1969). We have held that any possible prejudice to the defendant arising out of the jury's treating the witness' guilty plea as probative of the defendant's guilt can be obviated by appropriate limiting instructions by the trial court, 411 F.2d at 87. See also United States v. Silverman, 430 F.2d 106, 125 (2d Cir.1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 rehearing denied, 403 U.S. 924, 91 S.Ct. 2227, 29 L.Ed.2d 704 (1971).

On cross-examination, Coleman admitted his hope that the court, in sentencing him, would give him consideration for his cooperation with the government, but testified that nothing along those lines had been promised. Soon after the cross-examination had been completed, Cohen learned that Blackwood was in possession of a tape recording of a conversation between Coleman and Blackwood which occurred during the period when the charges were pending, in which Coleman stated that (1) the Assistant U.S. Attorney said he would recommend a suspended sentence in return for cooperation, (2) he was not guilty although he had pleaded guilty, and (3) he had no idea that the securities were stolen. Although Coleman was present in court, Judge Motley refused to allow him to be recalled for further cross-examination about these statements, ruling that the alleged contradictions between his testimony and his conversation with Blackwood were of questionable relevancy and that, in any event, such impeachment should have been brought out on the initial cross-examination.

We start with the proposition that a trial judge must be afforded wide latitude in management of the courtroom. "In the last analysis the trial court is the governor of the trial with the duty to assure its proper conduct and the limits of cross-examination necessarily lie within its discretion. And we should not overrule the exercise of that discretion unless we are convinced that the ruling of the court was prejudicial." Foster v. United States, 282 F.2d 222, 224 (10th Cir.1960); cf. United States v. Dibrizzi, 393 F.2d 642, 645 (2d Cir.1968). As to the defendant Blackwood, our deference to the trial judge's discretion should be especially broad,...