Appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Reversed and remanded.
Lumbard, Winter and Altimari, Circuit Judges.
Defendant-appellant Paul Mazzilli appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York. After a three day jury trial, Mazzilli was convicted of receiving stolen property in violation of 18 U.S.C. § 2315, possession of stolen property in violation of 18 U.S.C. § 659, and conspiracy to possess and distribute stolen property in violation of 18 U.S.C. § 371. Thereafter, he was sentenced to concurrent five-year terms of imprisonment on each count, of which four and one-half years were suspended, concurrent five-year terms of probation and was ordered to pay an aggregate $25,000 fine, a special assessment of $50.00 on each count, and to make restitution. Execution of the sentence was stayed pending appeal.
On appeal, Mazzilli presents several arguments in support of his contention that he was denied a fair trial.*fn1 In particular, Mazzilli claims that the district court's intensive questioning while he testified caused the jury to conclude that the court disbelieved his account of the facts and swayed the jury's views during its deliberations. In addition, Mazzilli points out that the court inquired into prejudicial, collateral matters during its questioning of him and he argues that, because the government's attorney would have been prohibited from inquiring into these matters, the district court erred in doing so. Because we conclude that the district court's intensive questioning of Mazzilli denied him a fair trial, we reverse.
The instant case arose out of the theft of a shipment of various electronic products and electronic children's games. On November 7, 1986, two tractor-trailers containing 500 Soundesign television sets, 3,408 Soundesign telephones and 1,428 Entertech Photon Warrior games were stolen from a truck yard located in New Brunswick, New Jersey. Shortly thereafter, the stolen merchandise surfaced in Brooklyn, New York. On November 19, 1986, FBI agents who were investigating the theft seized 284 of the stolen televisions and 411 of the stolen games from the home of defendant-appellant Paul Mazzilli. On the same day, government agents also seized 3,188 of the stolen telephones from Albert Baker, who owned a Brooklyn, New York wholesale video equipment outlet. On November 24, 1986, Mazzilli was arrested and charged with possession of the stolen merchandise.
At trial, Baker, who cooperated with the government in Mazzilli's prosecution, testified that on November 12, 1986 he was approached by an acquaintance named Joey who offered to sell him Photon Warrior games. The games normally sell for between $59 and $69 per game, but Joey offered them to Baker for between $35 and $45 each. Joey accounted for the low price by explaining that, although the games had been ordered for a North Carolina store, they were part of an "overage of a shipment" and had been "refused." Baker bought 800 games for a total cost of $30,000. Baker explained, however, that Joey wanted to be paid in cash and would not provide him with an invoice or bill of lading for the goods. Although Baker initially did not suspect that the merchandise he purchased from Joey was stolen, the cash terms and the lack of invoices led him to believe that the games were stolen.
Subsequently, on November 18, having sold the first shipment of games, Baker sought to buy more, but Joey did not have any to sell. Joey then asked Baker to "store" some Soundesign telephones for ten days as a "favor," and stated that "[i]f you can't sell them, I'll take them back from you and I'll give you a dollar to store and to handle each one." The next day two FBI agents visited Baker's store and seized the telephones. The agents then asked Baker whether he had information regarding Soundesign television sets. Baker told the agents that "they [the television sets] were on the streets and . . . [that] there [was] other stuff on the streets." He explained that he believed that this merchandise was stolen. He also told the agents that Mazzilli had offered to sell him some television sets but that he was not interested.
In addition to Baker's testimony, the government's case against Mazzilli included the testimony of the two FBI agents, Andy Conlin and Colleen Nichols, who had seized the Soundesign television sets from Mazzilli's home. Agent Nichols explained that after she and Agent Conlin had identified themselves and had explained to Mazzilli that they were looking for merchandise that had been stolen, Mazzilli directed them to his basement where he had stored the television sets. Agent Nichols testified that Mazzilli then approached her and sought to make a "deal" with the agents.
To rebut the government's case, Mazzilli testified on his own behalf. Mazzilli described himself as an inexperienced businessman who ran a small videocassette rental store in Brooklyn, New York. He stated that he was on a first-name basis with most of his customers, who largely were from the same neighborhood. Mazzilli explained that Joey, with whom he was acquainted, offered to sell him some Soundesign television sets, providing that he could return any unsold televisions in 30 days time and pay for only those sets which he had actually sold. He purchased 325 Soundesign television sets from Joey at $62 each and he resold them for $129, almost invariably for cash and without issuing a receipt. To counter the inference that, when he received the discounted merchandise, he should have known it was stolen, Mazzilli explained that, due to his inexperience, he simply thought he was getting a good deal on "overage" merchandise, which is commonly sold at deep discount throughout New York City. Mazzilli also challenged Agent Nichols' account of the conversation in which he allegedly sought a deal.
During the course of Mazzilli's testimony, the district court interrupted on several occasions to ask questions. At one point during cross-examination, while the government's attorney was attempting to impeach Mazzilli's testimony regarding his lack of knowledge that the goods were stolen, the district court intervened to ask questions regarding his transaction with Joey:
THE COURT: Let me see if I understand, on these terms. They were net 30 or open. So that you either paid him within 30 days or you could return the unsold balance and just pay for what you sold?
THE COURT: All of these items?
THE COURT: And there--he didn't require you to put any money down?
THE COURT: He just brought them and put them in your cellar?
THE COURT: Is that the way the invoice reads from Global?
[MAZZILLI]: I don't remember. Probably says net on it. Probably net 30.
THE COURT: Didn't say anything open?
[MAZZILLI]: I don't know. I'm pretty sure it said net 30.
THE COURT: It didn't say anything about open and right to return?
[MAZZILLI]: No. That's normal.
THE COURT: That's normal? That's the way all your customers do it?
[MAZZILLI]: All my distributors, sure. If I take a large delivery and I can't sell them, I can return ...