Appeal from conviction for receipt of money in connection with official duties in violation of 21 U.S.C. § 622 after jury trial in United States District Court for the Southern District of New York, Cooper, J. Judgment affirmed.
Feinberg, Mansfield and Timbers, Circuit Judges. Mansfield, Circuit Judge (concurring).
Carl Benedetto appeals from his conviction, after a jury trial in the United States District Court for the Southern District of New York before Irving Ben Cooper, J., on four counts charging the receipt of money in connection with his official duties as a government meat inspector. 21 U.S.C. § 622. This appeal, like United States v. Gubelman also decided today, 571 F.2d 1252 (1978), principally raises issues concerning the admissibility of evidence of criminal acts not charged in the indictment. We conclude that on the facts before us the judgment of conviction should be affirmed.
There is no claim that the evidence on the four counts charged was insufficient to go to the jury. From 1968 to 1975, appellant was employed by the United States Department of Agriculture as an inspector of wholesale meat processing plants. His primary responsibility was to enforce standards regarding sanitation and proper identification of meat products so that meat leaving a plant was wholesome and fit for human consumption. Appellant had broad administrative powers and a great deal of discretion in carrying out his duties. In the Government's direct case, officers of the four meat processing plants referred to in the indictment testified that appellant had received money in return for lax enforcement of various government rules. These cash payments varied from $15-25 each week.
In its direct case, the Government also introduced evidence from Arthur Breth that Benedetto had received similar payments from Arthur Breth and Son, which was not mentioned in the indictment. Prior to this testimony, Benedetto's counsel had made clear that he intended to call as witnesses employees of meat packing companies not referred to in the indictment. This evidence was to show that Benedetto had not solicited or accepted any money, and therefore was a person of good character not likely to have taken bribes. Defense counsel later lived up to his word and did present such testimony from four witnesses, who were employed by four other meat processing companies. In addition, Benedetto testified in his own defense. He suggested that his accusers were retaliating because they resented his vigorous enforcement of government regulations. Benedetto also denied that he had accepted any money from the Government's witnesses or from anyone else.
On cross-examination, the prosecutor asked Benedetto about receiving money from Herman Lustgarten, a fellow employee of one of the defense witnesses. Benedetto denied that he had accepted money from Lustgarten. In the Government's rebuttal case, Lustgarten testified that he had periodically given Benedetto $10 in cash, crumpled up and passed in a handshake.
On appeal, the arguments focus mainly on the testimony of Breth and Lustgarten that appellant had accepted money from them. Appellant claims that this evidence of uncharged crimes should have been excluded and that failure to do so deprived him of a fair trial. The Government responds that, under a long line of cases and under new Federal Rule of Evidence 404(b), the district court did not abuse its discretion in admitting proof of similar criminal acts, because such evidence was relevant to show identity, knowledge, intent and "a general plan or scheme," particularly since the similar acts and the acts charged shared "unusual characteristics."
The Government is correct that there is much authority in this circuit favorable to its position, see, e.g., United States v. Bozza, 365 F.2d 206, 212-14 (2d Cir. 1966); United States v. Deaton, 381 F.2d 114, 117-18 (2d Cir. 1967); and more recently, United States v. Corey, 566 F.2d 429, slip op. at 587-90 (2d Cir. 1977); United States v. Cavallaro, 553 F.2d 300, 305 (2d Cir. 1977), and that we have almost always held that the trial judge did not commit reversible error in admitting such evidence, but see United States v. DeCicco, 435 F.2d 478 (2d Cir. 1970). We have long been committed to the "inclusionary" approach to "other crimes" evidence, that is, that evidence of similar criminal acts is admissible if it "is substantially relevant for some other purpose than to show a probability that [the defendant] committed the crime on trial because he is a man of criminal character," McCormick, Evidence § 190, at 447 (2d ed. 1972). That rule is now codified in Federal Rule of Evidence 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This does not mean, however, that evidence of similar acts is automatically admissible. The Government must do more than demonstrate that the evidence is not offered solely to show that the defendant is a bad person. Stopping the analysis there would ignore the fundamental precept that any evidence must be relevant to some issue in the trial. There is no presumption that evidence of other crimes is relevant to any issue in a criminal trial, although it often will be. See 2 Weinstein's Evidence para. 404, at 404-41 to -43 (1976). Once the trial judge has decided that the evidence is relevant, under our cases*fn1 and under Federal Rule of Evidence 403, the judge must still weigh the probative value of the evidence against harmful consequences, principally "unfair prejudice."*fn2 The danger is that once the jury is told of the defendant's other crimes, the jury will impermissibly infer that he is a bad man likely to have committed the crime for which he is being tried. Moreover, we have emphasized that admission of such strongly prejudicial evidence should normally await the conclusion of the defendant's case, since the court will then be in the best position to balance the probative worth of, and the Government's need for, such testimony against the prejudice to the defendant. See United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975), cert. denied, 425 U.S. 958, 48 L. Ed. 2d 202, 96 S. Ct. 1737 (1976); cf. United States v. Robinson, 560 F.2d 507, 515 (2d Cir. 1977) (en banc) (admission of prejudicial evidence properly " delayed . . . until virtually all of the other proof had been introduced . . .."); United States v. Kaufman, 453 F.2d 306, 311 (2d Cir. 1971) (court pointed out that "Government did not offer the evidence in its main case on an issue not yet pressed by the defendant . . ..").
With these considerations in mind, we turn to the theories offered to justify admission of the testimony of Breth and Lustgarten that Benedetto took money from them. We are not impressed by the Government's argument that this evidence was relevant to Benedetto's knowledge and intent. Defendant did not claim that he took the money from the four companies named in the indictment innocently or mistakenly. He claimed that he did not take the money at all. Knowledge and intent, while technically at issue, were not really in dispute, see United States v. DeCicco, supra, 435 F.2d at 483-84. Similarly, we would be hard pressed to hold that Benedetto's alleged ...