United States v. Puff

• Citation: 211 F.2d 171
• Decision Date: 03 March 1954
• Docket Number: No. 136,Docket 22906.,136
• Parties: UNITED STATES v. PUFF.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

211 F.2d 171 (1954)

UNITED STATES v. PUFF.

No. 136, Docket 22906.

United States Court of Appeals Second Circuit.

Argued January 11 and 12, 1954.

Decided March 3, 1954.

Writ of Certiorari Denied May 3, 1954.

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Eugene H. Nickerson, and Abraham J. Gellinoff, New York City (Hale, Stimson, Russell & Nickerson, Lawrence L. Stentzel, II, Gershman & Gellinoff, New York City, of counsel), attorneys for defendant-appellant.

J. Edward Lumbard, United States Atty. for the Southern District of New York, New York City (George H. Bailey and James B. Kilsheimer, III, Asst. United States Attys., New York City, of counsel), attorneys for the appellee.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

Writ of Certiorari Denied May 3, 1954. See 74 S.Ct. 713.

HINCKS, Circuit Judge.

The defendant claims error in the admission of the testimony of an employee of the Prairie Village National Bank of Kansas that she had seen the defendant, whom she identified in open court, in the Bank on November 23, 1951, with a rifle when "dressed in white overalls and his hunting cap pulled down over the brow and his ears stuck up under the cap" actively participating in the robbery of the Bank. A preliminary objection was overruled and the testimony was received without specific limitation to any particular issue in the case. As the testimony proceeded a renewal of the objection was overruled with a caution by the Judge to the District Attorney in the hearing of the jury "since the defendant is not on trial at this time for this alleged robbery and the jury is not here to determine his guilt or innocence of that robbery, and this evidence is being received for a very limited purpose, that your inquiry into these matters be not too extensive." The testimony, all of which was reasonably restrained, was then speedily concluded and defendant's counsel moved to strike and for mistrial. These motions were denied, and a motion for a special instruction that the jury be instructed to disregard it was denied "at this time." The government then rested its case.

Thereafter, in the absence of the jury, the defendant again moved for mistrial on the ground that the testimony as to the bank robbery was irrelevant and prejudicial because of its inflammatory effect. This motion also was denied and in the colloquy which ensued the Judge pointed out that the testimony had been admitted on the question of motive which in turn bore on the issue of premeditation and the defendant's claim of self-defense.

These rulings we hold to have been in all respects proper. Certainly it was admissible for the government to prove that the defendant had a motive to shoot his way out of the hotel in which he found himself entrapped: such a motive had a natural tendency both to prove premeditation and to negate a possible contention that the defendant shot in self-defense. The existence of such a motive depended upon proof of the defendant's knowledge that he was wanted by the authorities for a serious crime: otherwise incentive would be lacking for adopting such a drastic means of effectuating escape. And testimony that the defendant had actually participated in a bank robbery was competent for its tendency to prove that at the time of the shooting he knew that he was wanted. The testimony that he participated in the earlier robbery without effective disguise afforded some ground for inference that he knew, or at least feared, that he could be identified as a participant. Up to this time in the trial there had been no concession by the defense that the defendant at the time of the shooting knew that he was wanted for a felony. And as the judge pointed out there was "no way of bringing it home except to show that by reason of acts of the defendant he knew or had reason to know that he was on July 26, 1952, sought as a fugitive from justice."

It thus appearing that this testimony had probative force on the defendant's motive which in turn had powerful bearing on the contested issues of premeditation and of self-defense, the case here must be distinguished from those in which proof of prior crime has no probative effect on any open issue, such as Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077; United States v. Sager, 2 Cir., 49 F.2d 725; and Hargett v. United States, 5 Cir., 183 F.2d 859. Instead, the case here is governed by doctrine recognized in such cases as United States v. Pugliese, 2 Cir., 153 F.2d 497; United States v. Glory Blouse & Sportswear Co., 2 Cir., 158 F.2d 880.

In United States v. Krulewitch, 2 Cir., 145 F.2d 76, 80, 156 A.L.R. 337, it was recognized that evidence of prior misconduct by the defendant had been improperly admitted because, although rationally relevant, its "cost" was "more than commensurate with the dangers it involved" in that "it greatly tended to muddle the jury, and to lead them to convict the accused because he was in general so loathsome." The rulings here were not inconsistent with that doctrine. For here motive was highly important for its bearing on the issues of self-defense and premeditation, upon the proof of which the possibility of a death sentence depended. It can fairly be said that the exclusion of this testimony might have been of dear "cost" to the attainment of justice. It was not until the summation that it was conceded that the defendant entered the hall knowing that he was wanted. It is highly likely that without this evidence the concession would not have been made even then. And even then it was not conceded that the defendant was wanted for a serious crime, — a fact which would bear heavily on the issue of motive. On the other side of the equation posed by the Krulewitch case, everything possible was done to prevent confusion and improper prejudice from the testimony. Thus the only reference to this testimony in the summation of the District Attorney was the following:

"As he got down to the fourth floor landing, this man, who under the name of Gerhard Puff was wanted in Kansas for a serious crime, did he not give some thought to what his plan was, and that was to escape this place, and to do it by whatever means were necessary? That is what he had the gun for, and people do not carry guns unless they have some idea they might need to use them.

"We have shown in this case and I think it is only fair to state the limited purpose of it, enough of the circumstances that the Johnson County Bank and Trust Company to show that the man that was wanted was this man, this Puff, and he, therefore, must have known that he was the man that was wanted, and that it was for a serious crime that he was wanted, one for which the punishment might well be such that a man would take some risks in escaping, that he would go down the stairs and carry a gun with him if he thought the F.B.I. might be closing in."

And the judge's charge to the point was confined to the following:

"You have heard testimony concerning the robbery of November 23, 1952, of the Johnson County National Bank and Trust Company of Prairie Village, Kansas, and that the defendant was suspected of participation in the commission of this crime, and that a warrant for the arrest of the defendant for this alleged participation issued from the United States District Court in the State of Kansas. It is the Government\'s contention, and with what force and effect it is for you to say, that proof of this robbery and of the defendant\'s alleged participation in it, if you believe that he did so participate, will tend to establish that at the time the defendant is alleged to have unlawfully fired the fatal shots he did so intentionally and with a purpose to evade arrest for the commission of that robbery. This testimony was received, not for the purpose of determining whether in fact the defendant did commit this robbery, for he is not on trial for that crime, but solely and for the very limited purpose of tending to establish a motive on the part of the defendant for the alleged unlawful shooting and killing of the deceased, as such motive bears on his intent. This testimony may be considered by you, if you believe it, and given such weight as you deem it entitled to receive, as a circumstance bearing upon the defendant\'s motive at the time of the alleged unlawful shooting and killing. It is only on this question of motive that you may consider this testimony. You may not consider it for any other purpose, for the fact that the defendant may or may not be guilty of another crime is no evidence of the fact of his guilt of the crime for which he is now on trial. You will come to a consideration of defendant\'s motive only if you have been first convinced beyond a reasonable doubt that the defendant did in fact unlawfully assault, shoot and kill the deceased."

Nor is there room for serious contention that the jury relied upon the evidence of the bank robbery as proof that the defendant shot the deceased. Quite apart from the concession in the defendant's summation, the fact that defendant shot the deceased was established by an overwhelming weight of evidence. Altogether it is abundantly clear that the only effect of the testimony objected to was for its impact on the issue of premeditation and motive for which it was properly received. If the defendant was prejudiced by the admission of the testimony the prejudice derived not from error but as the inevitable consequence of admissible testimony as to his own state of mind as evidenced by his own prior conduct. We reiterate our conclusion that this claim of error has not been sustained.

The defendant upon appeal also claims as error the admission of an indictment filed in the United States District Court for the District of Kansas on January 30, 1952, charging the defendant and another with the robbery of the Prairie Village Bank of Kansas on or about November 23, 1951. To the admission of this document the defendant had also interposed timely...