(concurring) :
I agree that the admission of the testimony that Russell DeCicco and Gregory Parness had previously indulged in activity involving stolen art works was egregious error requiring reversal of the convictions.
The rule regarding the admission of evidence of similar crimes can be simply stated. Such evidence, because of its highly prejudicial nature, is not admissible until the defendant has raised the issues of motive or intent. United States v. Smith, 283 F.2d 760, 763 (2d Cir. 1960). Entrapment is one of the additional special exceptions to the rule of inadmissibility of similar crimes. Vol. No. 29, Am.Jur. Evidence, § 321, at 370 (1970). See also, United States v. Stocker, 273 F.2d 754 (7th Cir. 1960); United States v. Bishop, 367 F.2d 806 (2d Cir. 1966).
Agent Griffin’s testimony that in nine months prior to August 1968 he had participated in recovering approximately half a million dollars in paintings, art objects and other goods “which were being fenced by Russell DeCicco and Gregory Parness” was highly prejudicial and it was not relevant to the issues before the jury when it was admitted.1
In the instant case the defense of entrapment was never really raised. The defendants did not take the stand; nor did they offer any evidence. All that happened was that on cross examination of Paul Parness, counsel for Gregory Parness asked whether he was trying to “trap” his brother. To this Paul Parness answered “No.” And there the subject of entrapment rested. Thus there was no attempt to develop any evidence of entrapment. It is true that the trial judge instructed the jury on this issue and that counsel referred to it in their closing argument. However, the question was not squarely presented because of the absence of evidence. It was error to receive the evidence of similar crimes before the issue was squarely presented by some evidence.
As Lord Sumner suggested in Thompson v. The King (1918) App.C. 21, 232 “Before an issue can be raised so obviously prejudicial to the accused, it must be raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of prejudice.” McCormick on Evidence, § 157, at 331 (1 Ed.1954).
It was also error to permit Agent Connors to testify, on direct examination by the government, that he had been in contact with John Burke “during the investigation of another matter involving the robbery of a coin collector * * *. ” It is the duty of government counsel to instruct witnesses not to state such matter in their direct testimony and not to do so until they are asked an explicit question which calls for such information. It was unnecessarily prejudicial to describe Burke, the man with whom the defendants dealt in concealing *487the fruits of the robbery, in such lurid colors.
I agree with Judge Waterman that before admitting testimony regarding the meeting of August 30, 1968 the trial judge should determine whether the conspiracy had terminated by that time because the effort to transfer the pictures the previous day had been aborted. If the judge finds that the conspiracy had ended, then the evidence is admissible only against Russell DeCicco. On application for a severance the other defendants would then have the right to be tried separately from Russell DeCicco, unless the government agrees not to use this evidence at a joint trial.
The case against Rene DeCicco was, in my opinion, sufficient to submit to the jury. Her telephone call and her presence when a threat was made to “burn” the informer could be found to indicate sufficient knowledge about the conspiracy and interest in its success to support a conviction.
As for Louis Markus’ complaint about the sufficiency of the evidence regarding his participation in overt act number 2, it is entirely discretionary with the trial judge whether he comments on the participation of a particular defendant in one of seven overt acts. This is particularly so where there is abundant evidence that one or more defendants committed all of the overt acts alleged in the indictment. It is enough if the jury finds that there was a conspiracy or agreement and that one or more of the persons found to be a member or members of the conspiracy did any act to effect the object of the conspiracy. 18 U. S.C. § 371.
There was abundant evidence that Markus was actively engaged in the conspiracy. It would be unfortunate if, what was said in the court’s opinion, were taken to indicate that, upon retrial, the trial judge was required to comment on so insignificant an item which was not determinative of the sufficiency of the evidence against Markus.
There was no error in the court s refusal to turn over to the defense material gathered from a New York State Police wiretap of Paul Parness’ telephone. There is no reason to believe that the federal agents knew of or had any connection with such wiretaps at the time. The court did examine the taps for exculpatory information and made a substantial portion of the tap material available to defense counsel before the trial. It was entirley proper for the court to refuse to order disclosure of all of the tap information since the taps included evidence of criminal activity which was under continuing investigation by the state police.
. It is worth noting that this testimony was conclusory hearsay testimony at best and objectionable on that additional ground.