571 F.

2d 1246
2 Fed. R. Evid. Serv. 1299

UNITED STATES of America, Appellee,

v.
Carl BENEDETTO, Defendant-Appellant.
No. 321, Docket 77-1306.

United States Court of Appeals,

Second Circuit.
Argued Nov. 17, 1977.
Decided Feb. 24, 1978.

Raymond A. Levites, Asst. U. S. Atty., New York City (Robert B. Fiske,

Jr., U. S. Atty. for the Southern District of New York, Audrey Strauss,
Asst. U. S. Atty., New York City, of counsel), for appellee.
Herman Kaufman, New York City (Litman, Friedman & Kaufman, New
York City, Jack T. Litman, New York City, of counsel), for defendantappellant.
Before FEINBERG, MANSFIELD and TIMBERS, Circuit Judges.
FEINBERG, Circuit Judge:

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, 2 Cir., 571 F.2d 1252,
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.
3

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.

II
5

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 at p. 431 (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:
7
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.
8

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 P 404(08), at 404-41 to -43 (1976). Once the trial
judge has decided that the evidence is relevant, under our cases1 and under
Federal Rule of Evidence 403, the judge must still weigh the probative value of
the evidence against harmful consequences, principally "unfair prejudice."2 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, 96 S.Ct. 1737, 48 L.Ed.2d 202
(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 similar acts shared "unusual
characteristics" with the acts charged, thereby evidencing a unique scheme or
pattern. McCormick states that such evidence is admissible:

10 prove other like crimes by the accused so nearly identical in method as to

To
earmark them as the handiwork of the accused. Here much more is demanded than
the mere repeated commission of crimes of the same class, such as repeated
burglaries or thefts. The device used must be so unusual and distinctive as to be like
a signature. (Footnotes omitted, emphasis added).3
11

We are told there was such a "signature" here because Benedetto used "a
similar technique for receiving the cash: the passing of folded bills by way of a
handshake." But that method of bribery is about as unique as using glassine
envelopes to package heroin. If the evidence were that the money had always
been passed to Benedetto in an unusual way, e. g., a requirement that the
money be placed in a peculiar place,4 we would have a different view.

12

There may be some force to the Government's arguments that the other crimes
evidence showed a continuing plan by Benedetto to use his position as a federal
meat inspector to get cash payoffs and that the evidence was admissible on the
issue of identity. Cf. United States v. Laurelli, 293 F.2d 830 (3d Cir. 1961),
cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 391 (1962). Defense
counsel perhaps indirectly raised the latter issue by extensive cross-examination
of Government witnesses, obviously designed to destroy their credibility by
showing that Benedetto was not at the particular plants on the days in question.

13

The Government also claims that the defense opened the door to the testimony
of Lustgarten and Breth by presenting four "character" witnesses, who testified
that defendant had not taken bribes at their respective plants. This evidence of
specific acts was ostensibly designed to prove that Benedetto was a person of
good character, unlikely to have taken the alleged bribes. Thus, the
Government says that it would have been "unfair" to bar it from rebutting this
testimony with extrinsic evidence of specific bad acts. However, character
evidence has long been admissible only in the form of reputation and not in the

form of a recitation of good or bad acts. See Michelson v. United States, 335
U.S. 469, 477, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Fed.R.Evid. 405(a).5
Furthermore, while a character witness may be asked on cross-examination
about "specific instances of conduct," such acts may not be proved by extrinsic
evidence of the sort offered here.6 That the defense improperly attempted to
establish defendant's good character by reference to specific good acts did not
justify the prosecution's use of testimony concerning bad acts either in its direct
case or in rebuttal. See United States v. Beno, 324 F.2d 582 (2d Cir. 1963),
aff'd after remand,333 F.2d 669 (2d Cir.), cert. denied, 379 U.S. 880, 85 S.Ct.
147, 13 L.Ed.2d 86 (1964).
14

If this were the only record before us, the case would be close. What ultimately
tips the scale, after reviewing the particular amalgam of facts in this case, is
that Benedetto testified on direct examination that he had never taken bribes
from anybody. Once a witness (especially a defendant-witness) testifies as to
any specific fact on direct testimony, the trial judge has broad discretion to
admit extrinsic evidence tending to contradict the specific statement, even if
such statement concerns a collateral matter in the case. See Walder v. United
States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); United States v. Beno,
supra, 324 F.2d at 588.7 Moreover, here Benedetto's statement was closely
intertwined with the central issue of this case, namely whether he had received
money in connection with his official duties at certain plants. The admission of
contradictory evidence to impeach Benedetto's credibility was thus warranted.

15

It is true that Breth's testimony came in the Government's case in chief, before
Benedetto's testimony opened the door. It would therefore have been better if
the Government had delayed Breth's testimony until rebuttal.8 Cf. United States
v. Leonard, supra, 524 F.2d at 1092. But we do not regard that as controlling in
view of the totality of circumstances here. Finally, we do not believe that the
door to impeachment of Benedetto thus opened was closed merely because on
cross-examination he persevered in his story and denied taking money from
Lustgarten, see Walder v. United States, supra, 347 U.S. at 63-64, 74 S.Ct. 354;
United States v. Vivero, 413 F.2d 971, 972 (2d Cir. 1969), cert. denied, 396
U.S. 1017, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970).9

16

We thus find that on this record the challenged evidence was admissible, at
least under Rule 607.10 See United States v. Nathan, 476 F.2d 456, 460 (2d
Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 171, 38 L.Ed.2d 56 (1973).
Moreover, in the context set forth above, the trial judge did not abuse his broad
discretion in also concluding that in light of the considerations set forth in Rule
403,11 the evidence need not be excluded. See United States v. Deaton, supra,
381 F.2d at 118 n.3.

17

We have considered appellant's other arguments and none require discussion.12

The judgment of conviction is affirmed.
MANSFIELD, Circuit Judge (concurring):

18

I concur in the result reached by Judge Feinberg in his carefully-considered

opinion, but on slightly different grounds.

19

The proof introduced at trial against Benedetto with respect to the bribes paid to
him by the four different meat processors alleged in the four-count indictment
was overwhelming. Officers of all of these concerns testified in detail to their
having made payments to numerous federal inspectors, including weekly
payments to Benedetto during the periods when he was assigned to inspect their
respective establishments. At trial these witnesses were fully cross-examined by
Benedetto, who testified in his own behalf. Undoubtedly, he received a full and
fair trial.

20

No evidence with respect to Benedetto's dealings with other meat processing

establishments was introduced by the Government until after his counsel,
during the Government's direct case, advised the court that he proposed as part
of the defense to introduce testimony of others in the meat business who dealt
with Benedetto to the effect that they neither gave him nor were asked by him
for money. Subsequently he introduced testimony to this effect by four
witnesses who worked in meat processing plants.

21

Had not the defendant first announced and then introduced this proof, I might
view the admission of the Government's "prior similar act" proof as error, since
no issues existed as to which it might properly have been admitted under
F.R.Evid. 404(b) (for instance, motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake). Nor can I agree with the majority
that the introduction of this evidence may be disregarded on the ground that it
might have been introduced to impeach Benedetto's credibility, since it was not
presented, received, or explained to the jury in those terms, and there was
therefore no requirement that Benedetto ask for the limiting instruction to
which he would have been entitled if such a ground had been advanced.

22

Nevertheless, once the court (albeit improperly) permitted the defendant to

introduce proof that he had not received or solicited bribes from others on other
occasions, I believe that it was only fair and reasonable to permit the
Government to rebut this evidence by showing that there were other occasions
when he did receive bribes from other meat processors. Our decision in United

States v. Beno, 324 F.2d 582, 588-89 (2d Cir. 1963), which appears on the
surface to point the other way, is distinguishable. There, after the court had
erroneously admitted evidence of specific acts (instead of community
reputation) introduced by the defendant, an Internal Revenue Agent charged
with solicitation of a gratuity, to show his good character, the Government
introduced by way of rebuttal detailed evidence of prior specific acts by the
defendant which had no possible relevance to the conduct at issue, such as
arrests for reckless driving and forgery of signatures on a tax return. We
properly held that the defendant's opening of the door or waiver did not entitle
the Government "to explore without restraint and at great length any specific
occurrence which might tend to create an abhorrent image of the defendant,"
324 F.2d at 588. Here, in contrast, the prior conduct offered by the Government
was virtually identical to that charged in the indictment.
23

Under the circumstances, although evidence of the prior conduct proffered by

the defendant should in my view have been excluded, I cannot say that it was
error, once the door had been opened by the defendant, to admit the
Government's rebuttal proof. But even if this be regarded as error, it was
harmless, in view of the overwhelming competent proof against the defendant.

See, e. g., United States v. Braunig, 553 F.2d 777, 781 (2d Cir.), cert. denied,
431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977); United States v. Chestnut,
533 F.2d 40, 49-50 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50
L.Ed.2d 93 (1976)

Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.

McCormick, Evidence 190, at 449 (2d ed. 1972)

This was the case with one Government witness, who testified that he left the
money in a coffee can each Friday

It should be noted that the new Federal Rules of Evidence, also allow character
testimony in the form of opinion. Fed.R.Evid. 405 and 608. The general
prohibition against direct testimony about specific acts is continued. See id.
Furthermore, the exception for testimony about specific acts in Rule 405(b) is
inapplicable here, since appellant's character was not "an essential element of

(the) charge . . .." Fed.R.Evid. 405(b). See United States v. Kahan, 479 F.2d
290, 293 (2d Cir. 1973), rev'd on other grounds, 415 U.S. 239, 94 S.Ct. 1179,
39 L.Ed.2d 297 (1974) (evidence of prior performance of official duty without
bribe-taking inadmissible in bribery prosecution)
6

See Fed.R.Evid. 405(a). Cf. Fed.R.Evid. 608 (deals with character evidence
supporting or attacking credibility of witnesses)

See also Fed.R.Evid. 607, which provides:

The credibility of a witness may be attacked by any party, including the party
calling him.
Rule 607 appears to allow the continuation of federal practice in admitting
extrinsic evidence to impeach specific errors or falsehoods in a witness' direct
testimony, subject to Rule 403 considerations. See 3 Weinstein's Evidence P
607(05) (1976).

The record indicates that the Government offered to do this, although the offer
was apparently based on the misapprehension that the defense's "character"
testimony would justify this form of rebuttal

On this view, the evidence was admissible for impeachment purposes only and
Benedetto would normally have been entitled to a limiting charge on this point,
cf., e. g., United States v. Harris, 401 U.S. 222, 223, 91 S.Ct. 643, 28 L.Ed.2d 1
(1971); Walder v. United States, supra, 347 U.S. at 64, 74 S.Ct. 354.
Presumably since the parties focused upon whether the testimony was
admissible under the prior similar acts rubric, no such charge was requested by
appellant. Considering all of the circumstances of this case, including the
closeness of the Rule 404(b) question and the strength of the other evidence
against appellant, we find no plain error in the court's failure to so charge. See,
e. g., United States v. Bozza, supra, 365 F.2d at 214

10

See note 7 supra

11

See note 2 supra

12

E. g., the claim that Benedetto was improperly asked on cross-examination

whether he ever used cocaine is without merit. Defense counsel stated at trial
that he had no objection to the inquiry, defendant answered it in the negative,
and the judge properly instructed the jury on the matter