United States v. Edelman

• Decision Date: 31 July 1969
• Docket Number: Docket 33309.,No. 640,640
• Citation: 414 F.2d 539
• Parties: UNITED STATES of America, Appellee, v. Louis EDELMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

414 F.2d 539 (1969)

UNITED STATES of America, Appellee, v. Louis EDELMAN, Defendant-Appellant.

No. 640, Docket 33309.

United States Court of Appeals Second Circuit.

Argued June 25, 1969.

Decided July 31, 1969.

Joshua N. Koplovitz, New York City, (Koplovitz & Fabricant, New York City, on the brief), for defendant-appellant.

John R. Wing, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Douglas S. Liebhafsky, Asst. U. S. Atty., on the brief), for appellee.

Before HAYS and FEINBERG, Circuit Judges, and JAMESON, District Judge.^*

FEINBERG, Circuit Judge:

Appellant Louis Edelman was found guilty after a jury trial in the United States District Court for the Southern District of New York, Constance Baker Motley, J., on one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. He appeals from that judgment of conviction and his sentence of two years in prison and $10,000 fine. For the reasons set forth below, we affirm.

Beginning in the mid-1950's, appellant was employed as a salesman by Herbert Arnot, an art dealer engaged in the business of importing original oil paintings from Europe for resale to art stores and galleries in this country. In June 1966, the employment relationship between appellant and Arnot, long a stormy one, came to an abrupt end. Thereafter, appellant went into business for himself and engaged in direct competition with his former enployer. Four months later, in October 1966, Arnot complained to the Federal Bureau of Investigation that he was missing a number of paintings and that he suspected appellant. An investigation was commenced which led to appellant's indictment in April 1967 on a charge that between July 1966 and November 1966 he had illegally transported 256 stolen paintings allegedly worth more than $25,000. The trial took place in November 1968, and appellant was sentenced in January 1969. Appellant has been on bail pending appeal.

At trial appellant testified on his own behalf, admitting that he had sold and shipped not only the paintings in question but numerous others as well. However, according to appellant, the paintings were not stolen. Rather, he testified that he had sold the paintings for Arnot under an agreement whereby appellant made cash discount sales, and this arrangement was devised by Arnot as early as 1956 as a tax avoidance scheme, and that Arnot continued it even after appellant's employment had terminated. Arnot's testimony for the Government was in direct contradiction. He denied that any such arrangement had ever existed and claimed that the paintings in question had been stolen from him. In essence, the theory of the defense was that Arnot had "framed" appellant. Thus, the principal issue at trial was credibility, and if the jury chose to disbelieve appellant — as it obviously did — there was more than sufficient evidence to sustain the conviction. E.g., in November 1966, after appellant's arrest two weeks before, FBI agents executed a search warrant for seven paintings in appellant's office, and appellant repeatedly denied having knowledge of the paintings; after over an hour's search, the agents found the paintings hidden in a back room. Similarly damaging was appellant's response to the reproach of an art dealer for having sold him 114 pictures which were subsequently seized by the FBI as stolen goods; appellant asserted in defense that "they weren't all stolen, there were some of mine in there too." Appellant claims, however, that the jury could not properly assess the credibility issue because of erroneous evidentiary rulings by the district court, both in excluding evidence that would have weakened Arnot's testimony and in allowing testimony that was prejudicial to appellant.

In the former category, appellant complains that Judge Motley improperly refused to subpoena customs and post office records and wrongly sustained objections put to a defense witness. Neither claim has merit. The attempt to subpoena the records was apparently part of a defense effort to establish that Arnot had been investigated in connection with possible customs and post office violations, that appellant had knowledge of these violations, and that Arnot instituted the prosecution against appellant to silence him. The logic of this argument is difficult to follow; at best, the probative value of the records as showing bias on the part of Arnot would have been slight. In addition, there was a very real possibility that the records would have been used generally to impeach Arnot as a witness by conduct not resulting in a conviction — an improper use.¹ See United States v. Bowe, 360 F.2d 1, 14-15 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L. Ed.2d 306 (1966). The question before us is whether under these circumstances the judge's ruling was an abuse of discretion. We do not think that it was. On the second point, as part of the defense case a New York City art dealer was called and asked whether he had been told by Arnot (1) that Arnot would put anyone out of business who stepped on his toes and (2) that Arnot had a scheme to put appellant out of business. Objections were sustained as calling for hearsay answers and those rulings were proper. That the answers might have been admissible for the non-hearsay purpose of establishing motive or bias apart from any inference about the truth of the matter stated is immaterial at this point. Appellant not only laid no foundation for the admissibility of the answers by questioning Arnot about the statements on cross-examination, see United States v. Hayutin, 398 F.2d 944, 952-953 (2d Cir.) cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968), but also failed to specify a non-hearsay basis for admitting the statements. Under these circumstances, we will not reverse the ruling of the trial...