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. Reversed.
Feinberg and Mansfield, Circuit Judges, and Werker, District Judge.*fn*
John J. O'Connor appeals from his conviction, after an eight-day jury trial in the United States District Court for the Southern District of New York before Irving Ben Cooper, J., on two counts charging that he took money from meat packing companies in connection with his official duties as a government inspector. 21 U.S.C. § 622. Appellant received concurrent sentences of two years on each count, with all but six months suspended. This case is another in a series of appeals in this court challenging the Government's use of other crimes evidence in a criminal prosecution.*fn1 Unlike those decisions, however, the admission of such evidence was clearly improper here and we reverse the judgment of conviction and remand for a new trial.
The relevant evidence in this close case may be briefly summarized, particularly since appellant does not claim that it was insufficient. Appellant was employed by the United States Department of Agriculture as a meat inspector from March 1970 until January 1977, when he was suspended. By virtue of his broad administrative power to enforce sanitation regulations, appellant was in a position to extort bribes from the meat packing plants he inspected. The jury could properly have found that appellant did exactly that at the plants of West Harlem Pork Center, Ltd., and Kupferberg Brothers, the subject of the two counts of the indictment on which appellant was convicted.*fn2 In the Government's direct case, the manager of West Harlem testified that in the period from July 1974 to January 1975, O'Connor received regular weekly payments of $25 in cash. The payments were made face to face with little comment by either party and in the absence of any witness. One of the owners of Kupferberg Brothers gave similar testimony, except that the payments were$15 per week.
At this point in the trial, the parties focused on the Government's offer of proof that appellant had taken bribes at other plants, the so-called other crimes evidence. Commendably, both counsel submitted memoranda and the district judge heard argument on whether this evidence should be admitted. In the course of the colloquy, defense counsel pointed out, among other things, that knowledge and intent were not at issue, and moreover, that on cross-examination of the prior Government witnesses he had deliberately refrained from any substantial attempt to attack their testimony on the issue of identification of appellant. The Government argued that the other crimes evidence was admissible to show appellant's intent, knowledge, lack of mistake, and common design or plan. After the judge overruled appellant's objections, the Government presented two more witnesses in its case-in-chief: an owner of J.M. Vorcheimer and a retired butcher foreman at George Korn & Sons, both meat packing plants in Brooklyn.*fn3 Each testified to handing over payments of weekly cash sums to appellant -- $50 in one case, $25 in the other -- with no witnesses and little or no conversation.
The principal evidence offered in defense came from a special agent of the FBI, a proffer discussed in more detail below, and from appellant, who denied that he had ever taken money or anything of value from any of the witnesses who said they had paid him. The defense also introduced the testimony of three character witnesses and two other FBI agents, one of whom was appellant's brother. In the Government's rebuttal, the manager of Omaha Hotel Supply Corporation, still another meat packing company, testified that he gave O'Connor, then an inspector at his plant, a bag of meat each week. A butcher at the plant corroborated this testimony. Finally, O'Connor was recalled to the stand and denied receiving the packages.
The jury deliberated for the better part of two days. It was apparent from the several notes that it sent to the judge and from other indications that the jury had difficulty reaching a verdict.*fn4 The judge twice gave supplemental instructions based upon Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), and the jury finally returned a verdict of guilty on two counts and, as already noted, not guilty on the third. This appeal followed, in which appellant argues for reversal on a number of theories, but concentrates most of his fire on the claim that the other crimes evidence should have been excluded.
Our canvas of the principles governing admission of other crimes evidence, see, e.g., United States v. Williams, supra; United States v. Benedetto, supra; and United States v. Gubelman, supra, is too recent to justify an extensive statement of the applicable rules here, and familiarity with those opinions will be presumed. Although we there initially pointed out that the new Federal Rules of Evidence adopted the "inclusionary" approach to other crimes evidence, we went on to stress that "this does not mean . . . that evidence of similar acts is automatically admissible." See Benedetto, supra, 571 F.2d at 1248. The Government, we emphasized, must do more than disclaim an intention of proving that the defendant is a bad man. For what prosecutor in his right mind will ever offer that improper justification? Instead, the prosecutor must show that the evidence is relevant, and there is no presumption that it is. See id.
In the case before us, the Government argued to the trial judge that the evidence of other crimes should be admitted to prove "intent, plan, knowledge, and the absence of any mistake or accident." Despite defense counsel's protestation that there was no real issue of intent, the judge admitted the disputed testimony as relevant to defendant's intent and plan, and so advised the jury.*fn5 On this record, the former theory was incorrect. As we pointed out in Benedetto,
Defendant did not claim that he took the money from the [three] 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. . . .
Id. at 1249; see also United States v. DeCicco, 435 F.2d 478, 483-84 (2d Cir. 1970).*fn6 The Government apparently concedes as much in this court, since it has ...