United States v. Glasser, 626

• Decision Date: 21 May 1971
• Docket Number: Docket 34970.,No. 626,626
• Citation: 443 F.2d 994
• Parties: UNITED STATES of America, Appellee, v. Sidney GLASSER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

443 F.2d 994 (1971)

UNITED STATES of America, Appellee, v. Sidney GLASSER, Appellant.

No. 626, Docket 34970.

United States Court of Appeals, Second Circuit.

Argued March 4, 1971.

Decided May 21, 1971.

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Jack Kaplan, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., James Schreiber, Maurice M. McDermott, Ross Sandler, and Walter M. Phillips, Jr., Asst. U. S. Attys., on the brief), for appellee.

Henry J. Boitel, New York City, for appellant.

Before LUMBARD, KAUFMAN and ANDERSON, Circuit Judges.

LUMBARD, Circuit Judge:

Sidney Glasser appeals from a judgment of conviction entered in the Southern District of New York on April 17, 1970, after a jury trial before Judge Motley. Glasser was convicted on Count I for conspiracy to affect interstate commerce by means of extortion, in violation of 18 U.S.C. §§ 371 and 1951, and on Counts II and III for actually affecting interstate commerce through extortions, in violation of 18 U.S.C. §§ 1951 and 2. He was sentenced to concurrent prison terms of five years on each count and was fined a total of $20,000 — $10,000 on each of Counts I and II. The prison sentence was suspended, and a two-year period of probation was imposed by the court. We affirm Glasser's conviction on the conspiracy count, and reverse his conviction on Counts II and III.

Glasser, the dominant officer of the only union representing plate glass installers in the New York metropolitan area, was indicted and tried with two co-defendants, Sam Kaplan and Larry Hill, also officers of the glaziers' union. Count I of the indictment charged that from December 1, 1964 until March 6, 1969, the three defendants engaged in a conspiracy to interfere with interstate commerce by spraying a special type of acid on, and thus causing damage to, windows which had been installed by nonunion glaziers, thereby having an extortive effect on (a) the nonunion installers of such glass, (b) the owners of shops requiring installation of such glass, and (c) the insurance companies which insured the windows, because, after these incidents of spraying, Glasser allegedly sent lists of unionized glaziers to the insurance companies. Counts II and III charged the defendants with affecting interstate commerce by means of such extortions, committed on July 14, 1967 and September 10, 1967, respectively. Although Glasser was convicted on all three counts, Hill was convicted only on Count I and was acquitted on Counts II and III, and Kaplan was acquitted on all counts. Hill's appeal has been withdrawn.

At trial the government's chief witness was one Sheppard Gellert, who had been employed by the union as assistant financial secretary. Gellert testified that acid was kept in the union's basement and that spraying it on a nonunion window was referred to as "doing a job" or "pissing up a window." Gellert stated that he himself received the reports of nonunion job sites, collected them in a book and thereafter gave them to Kaplan. Kaplan in turn passed the information to Glasser for aciding, but only, as Kaplan explained to Gellert, after he, Kaplan, has personally determined that the glass should be acided.

Gellert also testified that he had spoken to Glasser on certain occasions about the aciding and that he had overheard certain conversations between Glasser and Kaplan respecting the aciding. He stated, for instance, that in 1965 he overheard Glasser and Kaplan discussing the accidental spraying of a union job. In this particular case, Glasser stated that although this was a union job, it would teach the "so-and-so * * * a lesson." Another time in 1965, Gellert stated, he saw Glasser rush into Kaplan's office and he followed. In the ensuing discussion, Glasser showed Gellert a news article disclosing that the Westchester district attorney was going to investigate acidings of plate glass. Gellert asked whether the article referred to "one of our jobs" and Glasser replied, "No, we didn't do it." A few days later, Gellert was told by Kaplan, that although they did not do the particular aciding in question, Glasser "was worried because it put the heat on."

Gellert also testified that Hill had admitted to him that he did aciding for the union. For example, on many occasions throughout 1964 and 1965 and earlier, Hill complained to Gellert that although he did aciding for the union, he never received any money for it. Once in late 1964, Gellert saw a container of acid in the back of Hill's station wagon. Toward the end of 1964, Gellert was at the office working late one day when Hill telephoned saying that he was coming down to the office to drop off some medical forms since he had to come down anyway to do an aciding job for Glasser that night. Subsequently, Gellert told Glasser that it was risky using Hill to do aciding jobs because he was unstable. Glasser replied "Don't worry, I can control him."

Gellert testified, moreover, that on several occasions he had witnessed the delivery of acid to the union headquarters, and once he saw Glasser take the acid into his office. Finally, Gellert stated that his duties with the union included sending to insurance companies at Glasser's direction lists of certain unionized glaziers, accompanied by a covering letter from Glasser requesting that the insurance companies select only the shops on the list.

The government next offered the testimony of various shopowners and glaziers to the effect that numerous nonunion installations were damaged with acid during the course of the alleged conspiracy and that thereafter the damage was repaired by union glaziers hired by insurance brokers. Finally, the government relied on the union's avowed policy that members were required to report nonunion installations to union headquarters, although they were cautioned to avoid using a telephone in rendering such reports.

For the defense, Glasser testified in his own behalf and denied any personal involvement in any of the acts charged. The defense also attacked Gellert's credibility on the basis of his admitted hatred for Glasser and on the basis of his psychotic background. Finally, the defense claimed that the government totally failed to connect Glasser or the union with any of the acts charged.

In seeking reversal of his conviction, Glasser makes several claims of error: (1) that various items of evidence were admitted in violation of the rule against hearsay; (2) that the district court erred in permitting the prosecution to impeach Glasser on cross-examination and through rebuttal evidence concerning an act which occurred in 1960 and was not charged in the indictment; (3) that the court erred in denying Glasser access to a psychiatric report of a government witness; (4) that the court erred in permitting the government to impeach three defense witnesses by eliciting from them the fact that they had claimed their Fifth Amendment privilege against self-incrimination before the grand jury; and (5) that the evidence was insufficient to support the jury's verdict on any of the three counts.

I. Glasser contends first that various items of evidence were admitted at trial in violation of the rule against hearsay and of his Sixth Amendment right of confrontation.

1. Gellert testified without objection on direct examination that codefendant Hill had told him that "he did aciding for the union and that he put his life on the line and nobody appreciated him and that he never got any money for it, and things of that nature." On redirect examination of Gellert, the following exchange occurred:

"Q. Did Mr. Hill mention anything about acidings at that time and during that party?

"Defense counsel: I object. It is not proper redirect.

"The Court: Overruled.

"Defense counsel: Exception.

"A. He got drunk. He was loaded and he started to curse very badly and he started to talk about — he was mad at Sidney and Sidney Glasser doesn\'t appreciate him and he does — he puts his life on the line; he does aciding for Sidney and Sidney is so and so, along that line, and we had quite a job shutting him up."

Glasser argues that Gellert's statements were hearsay and also violated the Sixth Amendment under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that the admission of a nontestifying codefendant's extrajudicial statements at a joint trial violates the Sixth Amendment's right of cross-examination where those statements inculpate the defendant.

Since there was no objection on hearsay grounds to the admission of Gellert's statements at trial, Glasser's claim is not available on appeal unless that admission was plain error. Rule 52(b), Fed.R.Crim.P. Hill's extrajudicial statements were spontaneous and clearly against his penal interest. With these indicia of reliability, it is unlikely that cross-examination would have significantly weakened the effect of the statements in the jury's mind. Cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L. Ed.2d 213 (1970) (opinion of Stewart, J.). Moreover, there was no way in which the trial judge could have forecast that Gellert's answer to the question asked would have inculpated Glasser. Finally, in light of the overwhelming evidence of Glasser's involvement in the conspiracy, established particularly by Gellert's other testimony, the admission of this statement, if error at all, was clearly harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967). Under all these circumstances, we cannot say that the admission of Gellert's statement constituted plain error.

2. Leo Durocher, the owner of a victimized shop in Manhattan, testified, over defendant's objection, that he found a note after the aciding of his window, warning that when the glass was to be replaced, he was to make sure that it was "union glass." Durocher did not produce the note at trial, because he did not know where it was. Glasser argues that this...