Appeal from a conviction by a jury in the United States District Court for the District of Connecticut (T. Emmet Clarie, Judge) on two counts of transporting stolen firearms and one count of conspiracy to transport stolen firearms.
Van Graafeiland and Winter, Circuit Judges, and Bartels, District Judge.*fn*
Roger P. Cote appeals from his conviction by a jury on two counts of transporting stolen firearms, in violation of 18 U.S.C. § 922(i), and one count of conspiracy to transport stolen firearms, in violation of 18 U.S.C. § 371. The issue in this case arises from the exposure of the jury to highly prejudicial evidence admitted upon the government's representation that it would later be connected to defendant. Because no such connection was made and because the effects of exposure to the jury of this evidence could not be dissipated by cautionary instructions, we reverse.
Cote was named a defendant in three counts of a ten-count indictment alleging that he, Patrick Giles, and Debra Estabrook violated and conspired to violate federal firearms laws. Prior to trial, Giles pled guilty to one count of the indictment and agreed to testify against Cote. Co-defendant Debra Estabrook entered into a pre-trial agreement whereby she also agreed to testify against appellant.
Because events at trial are the basis for our decision, we examine those proceedings in some detail. The government called Estabrook as its first witness. She testified that in October, 1982, she was living with Giles in Putnam, Connecticut. At that time, Cote, her cousin, proposed to Giles that they break into houses and steal items including jewelry, silver, and weapons for resale. At first, according to Estabrook, Giles refused, but in November, 1982, agreed to commit break-ins with appellant. Estabrook testified that on an unspecified number of occasions Giles and Cote left in the morning to commit thefts in nearby towns. In the afternoon, they returned to Estabrook's apartment to divide up the stolen merchandise, which occasionally included firearms. In all, Estabrook stated she saw at least eight guns brought into her apartment in November and December, 1982. Several of the weapons, however, were brought by Giles alone, who, according to Estabrook, carried out some break-ins without Cote.
Following Estabrook, the government called Richard Blymiller. Blymiller began to testify that on October 25, 1982 his house had been broken into and three guns had been stolen. Defense counsel objected on the grounds that Cote had been charged in the indictment with any theft that occurred on October 25, 1982. At sidebar, the prosecutor stated that the October 25 burglary "is an overt act in the conspiracy; obviously the man has to be present to testify as to what was stolen, and to identify any weapons that were recovered." Judge Clarie admitted Blymiller's testimony but instructed the jury that the government still had the burden of proving appellant conspired with Giles in planning that crime. Blymiller identified the three guns that were stolen from his house on October 25th. The three weapons, a 20-gauge shotgun, a Marlin rifle, and an 8-millimeter Mauser, were admitted as exhibits.
The government then called Joseph Antos to testify about a burglary at his house on December 13, 1982. Defense counsel pointed out that Cote had not been charged with any crime that had occurred on that date. Judge Clarie again cautioned the jury that the government had to prove "that Cote was an active participant in the conspiracy." Antos then testified that his house in Dudley, Massachusetts had been broken into and that, among other things, six guns were stolen. Antos identified three weapons, a Ruger target pistol, a Winchester rifle, and a Browning shotgun, which were admitted as exhibits.
Eugene Beaudry was then called and testified that his home in Sturbridge, Massachusetts had been burglarized on December 17, 1982 and that two guns had been stolen. Beaudry identified one, which became another exhibit. Appellant offered no objection to Beaudry's testimony and asked for no limiting instructions, presumably because count eight of the indictment charged Cote with interstate transportation of firearms on December 17, 1982.
At the second day of trial, Anthony Tedona testified that on December 21, 1982, a Colt pistol was stolen from his home in Chepachet, Rhode Island. The pistol, which Tedona identified, was admitted as an exhibit. Appellant did not object, presumably because count nine charged Cote with interstate transportation of firearms on December 21st.
The balance of the second day was taken up by witnesses who testified that they had purchased or been given guns by Giles. These guns had been stolen from the houses of Blymiller, Antos, Beaudry and Tedona. None of the witnesses, however, connected Cote with the sale of the weapons.
On the third day, Giles was called. He corroborated Estabrook's statement that Cote had originally approached him about committing break-ins in October, 1982. Giles further testified that during the morning of December 17, 1982, he and Cote had broken into Beaudry's house in Sturbridge and stolen two guns and a coin collection. Giles testified that Cote had given one of these guns to Cote's father while Giles had kept the other. Giles also stated that on December 21, 1982 he and Cote had left Danielson, Connecticut at approximately 8:00 a.m. and burglarized Tedona's house in Chepachet, Rhode Island at 11:30 a.m. Giles testified that during this break-in, he and Cote had taken a 22-caliber pistol, earlier identified by Tedona, and some money. Giles gave the pistol to Estabrook's father, Hector Cote, as a Christmas present.
Giles was then asked by the prosecutor about the December 12th burglary of Anto's house in Dudley but stated that he had committed the crime without Cote. In answer to questions from Judge Clarie, Giles stated that Cote had not shared in the proceeds and that he, Giles, had committed the theft on his own. Even though the December 12th burglary fell within the time period of the conspiracy count, Judge Clarie struck all evidence concerning that burglary since Cote had been involved in neither ...