United States v. Uval Tubol, AKA Alon Yasar

191 F.3d 88, 52 Fed. R. Serv. 1436, 1999 U.S. App. LEXIS 19648
CourtCourt of Appeals for the Second Circuit
DecidedAugust 19, 1999
Docket1998
StatusPublished
Cited by35 cases

This text of 191 F.3d 88 (United States v. Uval Tubol, AKA Alon Yasar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Uval Tubol, AKA Alon Yasar, 191 F.3d 88, 52 Fed. R. Serv. 1436, 1999 U.S. App. LEXIS 19648 (2d Cir. 1999).

Opinion

POOLER, Circuit Judge.

Defendant Uval Tubol appeals his convictions for violating the Hobbs Act, 18 U.S.C. § 1951, by robbing an appliance store; possession of a firearm; and bank robbery. A jury in the United States District Court for the Eastern District of New York convicted Tubol of (1) robbing the appliance store, (2) using a firearm in connection with the appliance store robbery, (3) robbing a bank, and (4) being an illegal alien in possession of a firearm. Tubol concedes his guilt on the last charge but argues that the jury lacked sufficient evidence to convict on both of the robbery counts and on the gun count associated with the appliance store robbery. Tubol also contends that the district court erred by joining the appliance store robbery, bank robbery, and illegal alien in possession of a firearm charges for trial. Finally, he argues that the court erred by allowing the government to introduce evidence that Tubol (1) admitted participation in an unrelated Israeli bombing and (2) congratulated police officers upon his arrest. We find that the jury had sufficient evidence to sustain Tubol’s conviction on all counts but agree with Tubol that the robbery counts were insufficiently similar to justify joinder and that the district court should not have allowed testimony concerning Tu-bol’s participation in an unrelated bombing. Because these errors were not harmless, we vacate Tubol’s conviction on the challenged counts and remand for new trials.

BACKGROUND

In an indictment returned June 3, 1997, a grand jury sitting in the Eastern District of New York charged that on March 31, 1995, Tubol robbed the First Bank of the Americas located in Flushing, New York, and thereby violated 18 U.S.C. § 2113(a)(2). On September 18, 1997, the grand jury returned a superseding indictment that additionally charged Tubol with violating the Hobbs Act by robbing Kitchen Rejuvenation, an appliance store also located in Flushing, on March 15, 1995. A second superseding indictment issued October 9, 1997, charged Tubol with committing the bank robbery and the appliance store robbery and using a gun in the appliance store robbery in violation of 18 U.S.C. § 924(c)(1). On December 19, 1997, the grand jury issued a third superseding indictment. This indictment additionally charged that on April 28, 1995, Tubol, an illegal alien, knowingly and intentionally possessed a Baretta 9 mm. semi-automatic pistol and ammunition in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).

After Tubol received copies of witness statements from the government, he argued that the bank robbery charge should be tried separately from both of the appliance store robbery charges and the illegal alien gun possession charge. 1 Tubol offered two reasons for severance: (1) his chosen attorney would have to testify during trial of the appliance store robbery *92 count 2 and (2) the offenses did not qualify for joinder under Fed. R.Crim. Proc. 8. Tubol argued that joinder was improper because the charged offenses were not sufficiently similar. He pointed out that the witness statements indicated the bank robber dressed as a Hasidic Jew and carried a fake bomb while the appliance store robber did not wear Hasidic dress, did not carry a bomb, fake or otherwise, and did carry a gun. After some hesitation, the district court granted Tubol’s severance motion and determined to try the bank robbery charge first.

The court also addressed several eviden-tiary issues before trial began. Over Tu-bol’s objections, the court determined that the government could offer evidence that Tubol congratulated the officers who caught him and said that six different police agencies were looking for him. The court also allowed the government to offer Tubol’s admission that — for a fee of $25,-000 — he planted a bomb in a house in Israel a month before the bank robbery. The court, however, declined to allow the government to prove Tubol’s possession of a gun at the time of his arrest because no witness claimed Tubol used a gun in the bank robbery.

Tubol’s first trial ended in a mistrial after the jury informed the court that it was unable to reach a verdict.

Before Tubol’s scheduled second trial on the bank robbery charges, the government again asked to offer evidence of Tubol’s possession of a gun when he was arrested and of his use of a gun in the appliance store robbery. In support of this request, the government asserted that an additional witness would testify that Tubol had a black handgun in his waistband during the bank robbery. The district court indicated that it would allow the government to prove that Tubol also had a black handgun in his waistband at the time of his arrest. Tubol’s attorney, whose conflict had been resolved, then offered to withdraw his objection to joinder of all counts provided that the government did not offer evidence of the Israeli bombing admission or Tu-bol’s additional admission that he dumped guns in a river. The court ordered a joint trial on all counts but allowed the government to offer evidence concerning the Israeli bombing. The court also indicated that it would allow a police detective to testify that Tubol congratulated him but not to offer any additional detail about Tubol’s statement. Defense counsel then said, “[o]f course, we have the objections we initially made. We’re willing to work within the parameters of the court’s ruling.” The court responded, “[y]ou don’t have much choice.”

At Tubol’s second trial, the government offered the disputed evidence along with other evidence of the charged crimes. Jonathan Weiner, the appliance store proprietor, testified concerning the robbery of his store substantially as follows. A man whom Weiner described as “Israeli, an Arab,” came into the brightly lit store about five or six o’clock p.m. and spoke with Weiner in Hebrew for about half an hour. The conversation ended abruptly when the Israeli threatened Weiner with a gun. When Weiner tried to push a silent alarm, the robber slapped him. Weiner then gave the robber his wallet, and the robber left the store.

Eight weeks later Weiner selected Tu-bol’s picture from a photo array. However, some time after identifying Tubol from the photo array, Weiner viewed a lineup in which Tubol participated and identified a different individual. Weiner explained that he actually didn’t recognize anyone in the lineup and that he had difficulty making an identification because a clear glass partition separated him from the lineup. At trial, Weiner could not recall the robber’s build or his face but testified that he could still recognize Tubol as the robber from the photo array as well as a photo of *93 the lineup. Weiner also testified that a gun taken from Tubol at the time of his arrest resembled the gun that the robber used to threaten Weiner. No other physical evidence linked Tubol to the appliance store robbery.

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Bluebook (online)
191 F.3d 88, 52 Fed. R. Serv. 1436, 1999 U.S. App. LEXIS 19648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-uval-tubol-aka-alon-yasar-ca2-1999.