United States v. Ekram Manafzadeh

LUMBARD, Circuit Judge

(dissenting):

I dissent from my brothers’ conclusion that the admission of evidence regarding Manafzadeh’s other crimes was improper. Since I do not believe that the other objections raised warrant reversal I would affirm the conviction.

Manafzadeh’s principal contention on appeal is that the trial court committed reversible error when it permitted the government to present evidence regarding his participation in two check fraud schemes subsequent in time to the crime for which he was charged. The traditional rule of the federal courts with regard to other crimes evidence, now codified as Fed.R. Evid. 404(b), is that such evidence, though inadmissible simply to show a defendant’s bad character, may be used for such other purposes as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Despite the federal rule’s “inclusionary” approach, Manafzadeh argues, and the majority agrees, that the evidence of his other crimes served no purpose at trial other than to demonstrate Manafzadeh’s criminal disposition.

The majority is correct in its conclusion that the evidence of Manafzadeh’s other crimes could not be used to show that Manafzadeh committed the acts for which he was charged with the requisite intent.1 Manafzadeh offered to stipulate his culpable intent if it could be shown that he created or placed the six fraudulent checks in interstate commerce, and thus his state of mind at the time of his alleged criminal conduct was not truly in issue.2

Manafzadeh’s state of mind with regard to another act, his receipt of the five certified checks that were the proceeds of the underlying fraud, was, however, very much disputed, and it is upon this issue that the evidence of Manafzadeh’s other crimes was directly relevant. Manafzadeh’s possession of the proceeds of the fraud, though subject to an innocent interpretation, was the strongest evidence linking him to the crime. The government’s case, which was circumstantial in nature, rested largely on the natural inference that one who, without explanation, is in possession of the proceeds of a crime has participated in the crime itself.

Manafzadeh sought to counteract that inference by contending that his possession of the five certified checks was without knowledge of their fraudulent origins and was obtained in exchange for a large quantity of Iranian bonds. To buttress this claim of unwitting possession, which, given the circumstances of the alleged bond transaction, might have been thought to strain the jury’s credulity, Manafzadeh empha*92sized repeatedly the fact that the checks were certified, suggesting that this was a guarantee of validity upon which he was entitled to rely.

Of course, Manafzadeh’s participation in other schemes in which certified checks, apparently good on their face, were used as tools of fraud, tended to discredit his claim of innocent reliance on the stamp of certification and consequently to suggest his awareness of the underlying fraud. For that reason, the evidence of Manafzadeh’s other crimes was relevant not to show Manafzadeh’s bad character or criminal disposition, but to explain Manafzadeh’s state of mind at the time of an admitted but ambiguous act, his receipt of the proceeds of the check fraud.3

The majority argues that the evidence of Manafzadeh’s other crimes was not admissible on the issue of knowledge because Manafzadeh’s knowledge at the time he received the proceeds of the fraud “was not an element of the offense charged in the indictment and was not relevant to the charge against him, . . . .” That Manafzadeh’s knowledge was, in fact, relevant to the charge against him is, I believe, fairly set out above. With regard to the statement that Manafzadeh’s knowledge at the time he received the five certified checks was not an element of the offense charged, the majority’s observation is correct but of no particular relevance. Other crimes evidence may be used not only to prove directly an element of the crime charged, or so-called consequential fact, but also “to establish a proposition, such as motive, which through a series of inferences may tend to establish the probability of a consequential fact . . . 2 Weinstein’s Evidence 1404[08], at 404r-42 to 43 (1977).4

In sum, the record discloses a sophisticated scheme to defraud which was constructed to place the recipient of the fraudulently obtained funds in a position where he could claim lack of knowledge. This is the very kind of situation in which the jury gains needed enlightenment from evidence of similar schemes to which the defendant has been a party. In such circumstances, exclusion of other crimes evidence needlessly obstructs prosecution of those who would camouflage their criminal acts as ordinary commercial transactions.

Manafzadeh raises four additional grounds for appeal. Two have been rejected by the majority and I concur in their conclusion that there was probable cause for the February 23, 1977 search and arrest warrants and that there was no error in the trial court’s refusal to require the government to make an offer of proof regarding Manafzadeh’s alleged 1976 conviction for fraud in Iran.

Manafzadeh’s other two contentions were not resolved by the majority but are equally without merit. Manafzadeh claims that his May 27, 1977 arrest outside the Barbizon Plaza Hotel was improper for two reasons: 1) that there was no probable cause; and 2) that the police should have but failed to obtain a warrant. Manafzadeh’s contention that no probable cause existed for the arrest is based on the absence of evidence as to Matavossian’s past reliability as an informant. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The short answer to that argument is that, as Manafza*93deh has conceded, Matavossian was not a paid police informant but an actual accomplice to the crime. This court has recently held that “participation as an accomplice satisfie[s] the reliability standard.” United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978).

Manafzadeh’s claim that the failure of the police to obtain a warrant rendered his arrest invalid asks this court to extend its recent holding in United States v. Reed, 572 F.2d 412 (2d Cir. 1978) — that a warrantless arrest in a defendant’s home, absent exigent circumstances, violates the Fourth Amendment — to a warrantless arrest in a public place. As was noted in Reed itself, however, an arrest in a suspect’s home involves privacy interests “not present when a suspect is arrested in a public place,” Reed at 422. The argument that because police had time to obtain a warrant they were required to do so has been explicitly rejected with respect to arrests in public places, United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and the present case offers no reason for this court to rule otherwise.

Manafzadeh’s final argument is that the trial court erred in denying his motion for a mistrial, made after a government witness referred in his testimony to Manafzadeh’s exercise of his right to ask for a lawyer and his refusal to sign a waiver of rights form following his February 24,1977 arrest. The allegedly prejudicial remarks came as the witness, FBI Special Agent Russell Healy, described the arrest:

“We went to his office, at 1270 Avenue of the Americas, room 2401. I was standing in the hallway. Other agents went in and arrested him, brought him out, conducted a search. Myself and Special Agent Quinn escorted him downstairs in the elevator, placed him in a Bureau car. We read him his rights in the car, took him back to the office, interviewed him, read him his rights again, signed a waiver of rights — he did not sign the waiver of rights form, and he asked to call his lawyer.” (Tr. 18) (emphasis added).

Following a defense objection that was overruled, Healy continued:

“He asked to call his lawyer. We allowed him to call his lawyer and we collected a number of items from his person.” (Tr. 18).

At this point, Manafzadeh moved for a mistrial on the ground that the witness had impermissibly commented on his post-arrest silence. The prosecutor indicated, however, that Healy’s response had been “entirely unanticipated,” and the trial court, while offering to give the jury whatever curative instruction Manafzadeh proposed, denied the motion for a mistrial.

During cross-examination, Healy made two further “references” to Manafzadeh’s post-arrest silence. After being asked how long he had interviewed Manafzadeh after the arrest, Healy stated:

“A. He just signed the waiver of rights form is all he did.”

The trial court granted Manafzadeh’s motion to strike the answer as unresponsive.

In response to further questioning about his post-arrest interview of Manafzadeh, Agent Healy stated:

“Well, it depends upon how you are talking, about an interview. If reading his rights is an interview, we read him his rights.” (Tr. 25).

No objection or motion to strike was made following that statement.

Manafzadeh now argues that Agent Healy’s statements taken together constituted impermissible comment on his exercise of his Fifth Amendment rights. There is, of course, little doubt that Healy’s remarks were improper, but they fall far short of the sort of comment that has been found to require reversal. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1976); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Healy’s oblique and inconsistent statements concerning Manafzadeh’s post arrest behavior were more likely to have confused the jury than to have given them any clear impression that Manafzadeh refused to answer questions following his arrest. Such ambiguous remarks, particularly when not invited *94by the question posed,5 are not sufficient to warrant a mistrial. See United States v. Natale, 526 F.2d 1160, 1172 (2d Cir. 1975). Additional assurance that Manafzadeh was not prejudiced by Healy’s testimony is provided by the fact that the trial court took prompt curative action. See United States v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968).

I would affirm the conviction.

. I also agree with the majority that the other crimes evidence was not admissible as probative of Manafzadeh’s state of mind at the time he touched one of the six fraudulent counter checks. The only question relevant to Manafzadeh’s touching of that check was when he did so, not whether he knew at the time that the check was fraudulent.

. As the majority notes, the trial court’s charge to the jury, which directed that the other crimes evidence be considered only on the question of whether Manafzadeh placed the six fraudulent counter checks in interstate commerce with the requisite intent, was in error. I do not believe, however, that this error warrants reversal of Manafzadeh’s conviction since the evidence was admissible on very similar grounds and Manafzadeh consequently received the limiting instruction to which he was entitled. Indeed, the jury was instructed not only that it could not use the other crimes evidence to draw inferences about Manafzadeh’s character, the only use proscribed by 404(b), but also that it could not use the evidence for any purpose whatsoever until it first concluded beyond a reasonable doubt that Manafzadeh had caused the six fraudulent checks to be transported in interstate commerce. Under such circumstances, the prejudice, if any, to the defendant was minimal.

. The present case is thus unlike United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978), where only the defendant’s acts and not his state of mind were in question. Here Manafzadeh’s receipt of the proceeds of the crime was conceded, and his state of mind at the time was probative of whether that act was innocent or indicative of participation in the underlying fraud.

. As one commentator writing some years ago put it:

“Motive, intent, absence of mistake, plan and identity are not really all on the same plane. Intent, absence of mistake, and identity are facts in issue — facta probanda. Motive, plan or scheme are facta probantia, and may tend to show any facta probanda.” Stone, “The Rule of Exclusion of Similar Fact Evidence: America,” 51 Harv.L.Rev. 988, 1026, n. 190 (1938).

. There is no indication that the government sought to elicit Healy’s remarks. In fact, the only questions that might be thought to have invited comment on Manafzadeh’s post-arrest silence were the repeated inquiries on cross-examination regarding Healy’s “interview” of Manafzadeh.