request for a continuance during the trial.
2. The Testimony Admitted
A trial judge's ruling on the admissibility of evidence also will be reviewed for abuse of discretion or for arbitrary or irrational action. See United States v. Valdez, 16 F.3d 1324, 1332 (2d Cir.), cert. denied, 115 S. Ct. 60 (1994). The Court believes that it has committed no such error in regard to the admitted testimony of Mr. Sudnick. The evidence was proper within the Court's discretion for several reasons, and thus it was not violative of Fed. R. Evid. 404(b).
First, Mr. Sudnick's testimony corroborated testimony by two other witnesses in the case, Saverio Bizzaro and Salvatore Sciglitano, that defendant was in the New York City area in April of 1993. Second, the marijuana transaction to which Mr. Sudnick testified arguably was not a prior bad act because of its proximity in time to the vague opening date for the conspiracy stated in the indictment. Moreover, the transaction itself arguably had not been completed by the opening date because Mr. Sudnick testified that he still needed to make payment. Finally, part of the testimony's relevance related to defendant's state of mind, showing intent to possess or distribute drugs and knowledge of the illegal substances at issue.
The Second Circuit follows the "inclusionary" approach to the admission of other-act evidence, so that "evidence of prior crimes, wrongs, or acts is admissible for any purpose other than to show a defendant's criminal propensity." United States v. Muniz, 60 F.3d 65, 69 (2d Cir. 1995); United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992). The de minimis extent to which Mr. Sudnick's testimony could be misconstrued to show defendant's criminal propensity clearly does not rise to the level necessary to demonstrate that the Court abused its discretion by admitting the evidence. Nor was the admission arbitrary or irrational, due to the numerous proper uses that could be made of the evidence.
B. SUPPLEMENTAL JURY CHARGE
Counsel for defendant freely admits that he failed to object to the Court's supplemental jury instructions before the jury retired once again to continue its deliberation. As such, defendant's current objection to the sufficiency of the Court's response to the jury's conspiracy question is untimely. See Fed. R. Crim. P. 30. The policy behind Rule 30 -- "to prevent needless retrying of cases when the defect complained of could have been cured at the first trial" -- is an important one. United States v. Olgin, 745 F.2d 263, 271 (3d Cir. 1984), cert. denied sub nom. O'Brocta v. United States, 471 U.S. 1099 (1985). When such an objection is untimely, reversal is proper only when there is plain error. United States v. Tillem, 906 F.2d 814, 826 (2d Cir. 1990). The legal sufficiency of supplemental instructions is assessed in light of the jury instructions as a whole. United States v. Gengo, 808 F.2d 1, 4 (2d Cir. 1986).
For its supplemental instruction, the Court in this case simply reread the initial charge that accurately depicted the elements of conspiracy in response to the jury's inquiry. As such, this case falls squarely within the holding of Tillem. There, the trial judge responded to a written jury question by restating the definition of extortion that he previously had provided, and then gave an offhand distinction between bribery and extortion in response to a juror's oral question. Defense counsel failed to object at the time but later questioned the judge's offhand remarks. The Second Circuit held that "any confusion caused by the trial court's failure to answer directly . . . was remedied by a 'rereading of the full charge [that] correctly set forth the applicable principles.'" Tillem, 906 F.2d at 827 (citation omitted).
Under the Tillem standard, the Court's believes that its rereading of the charge in this case also was sufficient to remedy the confusion, if any, caused by its failure to respond to the jury as the defendant now believes it should have responded. In other words, defendant has not satisfied his burden for obtaining a reversal. "Plain error" is error so egregious and obvious as to make a trial judge and prosecutor "derelict" in permitting it, despite defendant's failure to object. Id. at 825. Defendant has not alleged any infirmity in the Court's original instructions regarding conspiracy, even with the benefit of hindsight, so it is not reasonable to expect the Court or prosecutor to have done so at either time they were read to the jury. Thus no "plain error" was committed, and defendant's untimely objection must fail.
Defendant has not demonstrated that he is entitled to relief from the jury's verdict. For all the foregoing reasons defendants' motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33 is hereby DENIED.
IT IS SO ORDERED
October 1, 1995
Binghamton, New York
HON. THOMAS J. McAVOY
Chief U.S. District Judge
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