United States v. Fisher, 361

• Citation: 455 F.2d 1101
• Decision Date: 14 February 1972
• Docket Number: No. 361,Docket 71-1830.,361
• Parties: UNITED STATES of America, Appellee, v. Michael C. FISHER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

455 F.2d 1101 (1972)

UNITED STATES of America, Appellee, v. Michael C. FISHER, Appellant.

No. 361, Docket 71-1830.

United States Court of Appeals, Second Circuit.

Argued January 21, 1972.

Decided February 14, 1972.

Jesse Berman, New York City (Stanhope Lacy, Jr., Jamaica, N. Y., on the brief), for appellant.

Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for Eastern District of New York, David G. Trager and Thomas P. Puccio, Asst. U. S. Attys., on the brief), for appellee.

Before SMITH, FEINBERG and MULLIGAN, Circuit Judges.

FEINBERG, Circuit Judge:

Appellant Michael C. Fisher appeals from a judgment of conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) and for conspiracy to commit the robbery, 18 U.S.C. § 371. He was tried before Judge Orrin G. Judd and a jury in the United States District Court for the Eastern District of New York, together with four co-defendants. The jury acquitted two co-defendants, failed to reach a verdict on the third, and found the fourth, Gary Bush, guilty along with Fisher on the substantive counts and on the conspiracy count. Fisher and Bush were each sentenced to 25 years imprisonment and both appealed, although Bush's appeal has been severed. We affirm appellant Fisher's conviction.

The evidence introduced at trial—if properly admitted—overwhelmingly established that appellant was one of the six men who, on December 30, 1970, robbed a Brooklyn branch of the Manufacturers Hanover Trust Company. These men, armed with a small arsenal of dangerous weapons, stole over $15,000 and fled in two getaway cars. Appellant contends, however, that for various reasons, some of the evidence was improperly admitted and that his conviction should be reversed. We will consider his contentions in turn.

On the evening of January 4, 1971, five days after the robbery, two New York City patrolmen stopped appellant and a co-defendant while they were driving one of the getaway cars. The car was initially stopped because it had defective tail lights, but a subsequent radio check revealed that the car had been stolen. At the time of their arrest, appellant and the co-defendant were in possession of $2,538, two federal reserve bank straps (used to fasten large bundles of money), and a box of .357 magnum ammunition, as well as a small quantity of narcotics. Appellant claims that since the money thus seized was not demonstrated to have been stolen, it should not have been admitted into evidence. Also, since appellant's prior economic status was not established, it is argued that the Government could not properly rely on a theory of sudden acquisition of wealth. See United States v. Trudo, 449 F.2d 649, 651 (2d Cir. 1971); United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). Both these arguments, however, overlook certain simple facts. First $2,500 is a large sum of cash by almost any standard. Second, although the money did not contain any of the bank's recorded "bait money," it was seized in one of the getaway cars only five days after the robbery. Third, bait money and large sums of cash had been turning up all around appellant. For example, the $1,000 cash bail posted by appellant's mother and girlfriend included some of the marked bills. In such circumstances, it is understatement to say that the sum found on appellant and his co-defendant was sufficiently relevant to be admissible. Evidence need not prove the Government's case before it can be introduced. People v. Adamson, 27 C.2d 478, 165 P.2d 3, 6-7 (Cal.1946) (Traynor, J.); 1 Wigmore, Evidence §§ 28, 29 (3d ed. 1940). Similarly, the bank straps may not be conclusive on the issue of complicity in this particular robbery, but they surely are relevant to the issue.

Appellant also objects to the introduction of other real evidence: (1) $5,261 in cash, including some bait money, found in the house of co-defendant Bush's father-in-law during a search on the evening of January 5, 1971; (2) a shotgun found in the home of Bush's parents; and (3) certain weapons that had been left in one of the getaway cars during the robbery. The first two items were admitted only against defendant Bush. Nonetheless, appellant claims that the "cumulative prejudicial display of guns and money . . . which bore little or no relation to the proof" unfairly affected all of the defendants.¹ This claim is without merit. Bush had access to the houses of both his parents and his father-in-law. That he did not have exclusive control over those premises may certainly affect the probative value of the evidence—but that factor alone does not dictate exclusion. Similarly, possession of weapons at the scene of the crime and subsequent to the crime was relevant at least to show preparation for the crime and to corroborate the testimony of a key government witness.² See United States v. Ravich, supra, 421 F.2d at 1204. To be sure, all of this money and hardware was potentially unfairly prejudicial. But if relevant, the task of weighing possible unfair prejudice against probative value rests with the sound discretion of the trial judge, and "his determination will rarely be disturbed on appeal." United States v. Ravich, supra, 421 F.2d at 1205. The trial record amply demonstrates that Judge Judd considered the dangers of admitting this evidence, and, in light of the record, we are not persuaded that his decisions should be reversed.

On the morning following appellant's arrest by the City patrolmen, he was arraigned in Brooklyn Criminal Court on charges of grand larceny and possession of narcotics and was then held in the Brooklyn House of Detention. Shortly before midnight on January 5, 1971, appellant was there "re-arrested" by the FBI, taken to an FBI office and interrogated. During the interrogation, appellant admitted...