Petition for Writ of Certiorari — Giordano v. United States

Supreme Court brief1969

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SUPREME COURT. U. & . } FILED

j MAY 16 1968

\No. | = JOb|

mlbiie® DAVIS, CLERK &

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Supreme Court of the United States

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Oona TzEM, 1968 2: o£

“DAVE EVANS, iw oe

Petitioner,

"(THE UNITED STATES OF AMERICA, |

Respondent.

ciebieiins taleean ener aye ee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

_ FOR THE SEVENTH CIRCUIT

et reece eer

RMP FALL TR LT ORE eM * ey La

' RAYMOND J. SMITH

105 West Adams Street 3

Chicago, Illinois 60603 t

MORRIS A. HAFT |

134 North LaSalle Street {

Chicago, Illinois 60602 :

Attorneys for Petitioner g

UNITED STATES LAW PRINTING CO., CHICAGO, ILL. 60618 LA keview 5-6581 q

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“proper activities in that business _ ....... Lenin

INDEX ,

; PAGE |

Judgment and Opinion of the Court Below .................... 1

Jurisdiction ccaeei | 2

Questions Presented ° SE ee Bs

Constitutional Provision, Statrfle and Rules Involved... 3

’ Statement of the Case anevada 1 5

Statement of the Facts _ .......... valent °.6 >

~ (a) Evidence of The Three Government Witnesses

Relating to the Alleged Conspiracy ................ aes,

(b) Evidence of Palermo-Amabile Threats Not

_ Anywhere Alleged in the Indictment ............. 11

(e) Evans-Battaglia te 12

(d) The Defense | 12

Reasons For Granting the Writ 13

1. Under Krulewitch v. United States, 336 U.S.

400 (1949) and-Ingram v. United. States, 360

U.S. 672 (1959), a conviction for conspiracy to .

violate the Hobbs Act, 18 U.S.C. §1951 cannot —

be sustained on the theory of guilt by associa-

tion where there is no proof of knowledge of

or acquiescence in the unilateral extortionate

_act of a co-defendant ........ anil signee 13

2. The principles of Michelson v. United States,

335 U.S. 469 (1948) are violated when the Dis-

2 trict Court refuses to allow evidence of the de-

fendant’s good reputation in the business com-

‘ munity where the crime charged relates to im- .

19 |

Mg POLIS IGA EIR A IAL ES ELENA MIG SEF TLE ESI NE LEER ELIS.

EER RIE OTN, pe ARAB RTC pean moe 8 1 Me we pay the

a POST MET

; os ee P

™ : . ‘ ll . ee

s . . ed

_ & The. petitionsr was deprived of his right of

| cross-examihation ‘guaranteed by -the- Sixth

Amendment to the constitution when he was

* denied access to the grand jury testimony of

‘important government witnesses,” prohibited —

frem determining the addresses of these wit-

nésses and from inquiring into their motives

in testifying <inseteieieipiiaiainniaajinenitenaanncniiebiatie eiinecsinliai 21 .

Conclusion -......... oeamieons nen — Ratanabies 24 .

‘TABLE OF AUTHORITIES OITED

| Cases | ue ;

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)..14, 17

Cargill v. United States, 381 F.2d 849 (10th Cir. 1967) 22

Carnley v. United States, 274 F.2d 69 (5th Cir. 1960) 19

Dennis v. United States, 384 U.S. TD eciscennnensmemnsnicsnnnn 22

Grunewald v.. United States, 353 U.S. 391-404 (1957) 13°

Harris v. United States, 271. F.2d: 365 (9th Cir. 1967) 23 .

‘Ingram v. United States, 360 U.S. 672 (1959) ...2,13, 16, 18

Kroot, v. United States, 66 F.2d 449, 451 (7th Cir.

1933) , 20

Krulewitch v. United States, 336 U.S. 440 (1949) ... 2,13

Lefco v. United States, 74 F.2d 66 (3d Cir. 1934) ........ (15

Michelson v. United States, 335 U.S. 469 . saicistaintacibehsehiaeaiba 2,19

Pereira -v. United States, 347 U.S. 1 (1954) ner aiicidialtiels 15

Pointer v. Wexas, 380 U.S. 400, 405 (1965) enn 21

Robinson v. United States 56 P2d 574 21

Schlinsky v. United States, 379 F.2d (35 (1st Cir.

1967) sesieunitbinensinesion os ) 22

Sere

‘ee. | -

earns oo pana, PAGE

- Smith v. Illinois, 390 US. Se ena 93

Stirone v. United States, 361 U.S. 212 (1960) — 17

Twitchell v. United States, 318 F. 2d 425 (1963) .......... 16

United States v. Barnes, 383 F.2d 287 (1967) Siehiabitiniilias: 16

United States v. Crimmins, 123 F.2d 271 (1941) .....16, 17

United States v. Masino, 275 F.2d 129 (2d Cir. 1960) 23 —

United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) . oad 15

United States v. White, 224 F.Supp. 514 (1963) .......... 20

United States v. Youngblood, 379 F.2d 365 (2d Cir. .

1967) .. al acadalclipasiaciecateeseitbasdicaiibal 22

Wheeler v. United States, 351 F.24 946 (1st Cir. 1965) 23

baderne v. United States, 296 F.2d 512, 517 — Cir.

31081)°* ......: ‘ ‘a 20

Williams Vv. United States, 168 U. S. 382, 397 clabiasmaaiels 20

| Worthy v. United States, 383 F.2d 524 D.C. Cir.

> oe Pee 22

Other Authorities

28 U.S.C. §1254(1) ......... siiliniebiniietlesitaiasciniidlatiiaieibaisbs 2

Amendment VI of the United States Constitution ...3, 21

18 U.S.C. $1951 ceccceeeceeceene hituain 3, 5,13

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a ORM CMRI L 0 IT! \- Tete ae cated tt aie he eal ae co ce kame ott ced Gee aia eee

paaee In the .

Supreme Court of the United States:

_ Ocroser TERM, 1967

No.

DAVE EVANS, “

: Petitioner,

Vv.

THE UNITED STATES OF AMERICA,

_——e.

PETITION FOR WRIT OF CERTIORARI TO THE:

‘UNITED STATES COURT OF APPEALS -

_ FOR THE SEVENTH CIRCUIT

- To The Honorable The Chief Justice and Associate Justices

of the Supreme Court of the United States:

The Petitioner, Dave Evans, prays, that. a Writ of

Certiorari be issued to review the decision of the United

States: Court of Appeals for the Seventh Circuit in the

above case. :

| JUDGMENT AND OPINION OF THE COURT BELOW

The opinion of the United States Court of Appeals for |

the Seventh Circuit in the above-entitled cause, dated

January 9, 1968, affirmed the judgment of conviction. |

MOR T RT Oe UN

LO NONE PE Mla ee He

ee ae ee eo

The opinion. of the Court of Appeals (not yet reported)

is reprinted as Appendix A, infra. The judgment order

of the Court of Appeals was entered January 9, 19s, and

is reprinted as Appendix B, infra. A Petition for Re-

hearing En Banc was timely filed but was denied by order

dated April 17, 1968, which order i is — as Appendix

C, infra.

J URISDICTION

The judgment of the Court of Appeals was entered on

January 9, 1968, Appendix B, infra. Petition for rehear-

~ ing was denied on April 17, 1968, Appendix C, infra. The

jurisdiction of this Court is invoked” under 28 U.S.C.

§1254(1). :

QUESTIONS PRESENTED

1. Whether under Krulewitch v. United States, 336 U.S.

440 (1949) and Ingram v. United States 360 U.S. 672

(1959), a conviction for conspiracy to violate the Hobbs

Act, 18, U.S.C. §1951, can be sustained ori -the theory of

_ guilt by association where there is no proof of knowledge

of or acquiescence in the unilateral extortionate act of a

co-defendant.

2. Are the principles of Michelson v. United States,

335 U.S. 469 (1948) violated when the District Court ‘re-

fuses to allow evidence of the defendant’s good reputation

‘in the business community when the crime charged relates

to improper activities in that business? ,

3. Was the petitioner deprived of his right of ‘cross-

examination, guaranteed by the Sixth Amendment to the

Constitution, when he was denied access to the grand jury

testimony of important government witnesses, prohibited

from determining the addresses of these witnesses, and -

from inquiring into their motives in testifying?

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED

AMENDMENT vI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury }

of the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining Witnesses in his favor, and to have the Assistance

of Counsel for his defence. .

18 U.S.C. § 1951, reads in part:

“$1951. Interference with commerce by threats

_or violence. (a) Whoever in any way or degree ob- —

~-- structs, delays, or affects commerce or the movement

or any article or commodity m commerce, by robbery

or extortion or attempts or conspires so to do, or com-

mits or threatens physical violence to any person or

_ property in furtherance of a plan or purpose todo

_- anything in violation of this section shall be fined Shot

more than $10,000 or imprisoned not more than twenty

years or both. ‘

(b) As used, in this section—

.(1) The term ‘robbery’ means the unlawful taking

or obtaining of personal property from the person or

in the presence of another, against his will, by means

of actual or threatened force, or violence, or fear of

injury, immediate or -future, to his person or prop-

erty, or property in his custody or possession, or the

person or property of a relative or member of his

family or of anyone in his ee tind at the time of the.

taking or obtaining.

eh AEM IN m4

(2) The term ‘extortion’ means the obtaining of

property from another, with his consent, induced by

wrongful use.of actual or threatened force, violence,

or fear, or under color of official right.

(3) The term ‘ commerce’ means commerce within

the District of Columbia, or any Territory or Posses-

sion of the United States; all commerce between any

point in a State, Territory, Possession, or the District

_of Columbia and any point outside thereof; all com-

merce betwéen points’ within the same State through

any place. outside such State; and all other commerce

over which the United States has jurisdiction.’’

STATEMENT OF THE CASE.

The substance of the indictment was that petitioner,

Dave Evans, together with two othérs, Joseph Amabile

and Salvatore Battaglia,’ were indicted for conspiracy to

violate the Hobbs -Act, Title 18, U.S. Code, Section 1951.

The one-count conspiracy indictment charged that the three

_ defendants, together with alleged co-conspirators, non-

defendant Rocco Pranno, conspired ‘‘to obstruct, delay and

affect commerce”’ in the construction of multiple dwelling

- units in Lansing, Illinois, and to obstruct ‘‘the. movement

in interstate commerce of materials, supplies and other

commodities required for the construction, sale, rental and

management of the units, and to: attempt to do so by ex-

tortion.’’

The indictment ie that the conspiracy began ‘‘in or

about July, 1964’’ and continued to the time of the filing

of the indictment, February 16, 1967. It charged that as

_ part of the conspiracy the defendants and co-conspirator

‘‘would attempt to obtain and did obtain property to the

value of $48,500 in the form of money, from the Riley

Management Corporation . . » induced by .the wrongful

' use of fear in that the defendants and co-conspirator by

threatening language did put and attempt to put William

Riley in fear of bodily harm and in fear of his personal

safety and security and did threaten economic harm to the

_ Riley Management Corporation and to William Riley”’

unless and until Riley would cause the payment of the

money to the defendants’ and co-conspirator by the Riley

Management Corporation (A. 19-21).

1 Separate Petitions will be filed. by these defendants. °

EROS TEN MI ‘

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Om~ ny SAE

STATEMENT OF THE FACTS

(a) Evidence of The Three Government Witnesses Re-

lating to the Alleged Conspiracy. : =f

William Riley was President of the Riley Management

Corporation. (A. 489). His company was buildifig the

King Arthur project; a group of apartment buildings, in

Lansing, Illinois. Petitioner Dave Evans was his superin- -

tendent of construction on that job (A. 501). °

In June, 1964, Riley had a conversation with Evans in

which he told Evans that the Lansing job was to begin

and that Evans was to let the sewer contract. Riley told

Evans that he did not want the people from-Melrose Park,

» especially Amabile and Palermo, to know of this Lansing

project (A. 502-3). A few days later, Palermo contacted

Riley about the work on the Lansing. project (A. 503).

In late July or early August, 1964, Amabile, DiVito and

Pranno met. DiVito had been in the sewer contracting

business for a number of years. Amabile told DiVito and

* Pranno that they could get the sewer and water mains con-

tract of the Lansing project if they could come up with a

.“*good clean fellow’’ to head the job (A. 124).

In mid-September, Pranno and DiVito spoke with La-

Key and convinced him to take charge of the company that

would have the sewer contract _ the Lansing project (A.

126-7) '

_ Later during the a" of September, Pranno, DiVito

and Evans met at Amabile’s apartment and Pranno in-

formed Amabile that they had a ‘‘good clean fellow’’,

LaKey. Amabile then said he would give them the job but

that he wanted $20,000 ‘‘off the top’’ from them. Pranno

agreed to give Amabile the money (A. 128-9, 256).

‘

Government witnesses Mike DiVito, Henry LaKey and an

unindicted alleged co-conspirator, Rocco. Pranno, formed

the Carlson Construction Company in October, 1964, for.

the purpose of bidding on and getting the sewer construc-

tion job (A. 130-132).

Pranno loaned Carlson Construction Company approxi-

mately $13,000 for its initial bank deposit in order to start

business (A. 273). Some $12,090 of that initial money

was deposited by LaKey to the account of Carlson Con-

struction Company in October, 1964 (A. 273). Pranno,

DiVito and LaKey borrowed an additional $5,000 in cash:

for the Carlson Construction Company account (A. 146).

The Carlson’ Construction- Company commenced opera-

tions. It put in the pipes, water lines -_ water pump-

ing lifts (A. 287-8).

Because of urgencies, shipments were made to the proj-.

ect in Lansing, Illinois, quite rapidly from the Granco

Steel Company, St.. Louis, Missouri. ‘‘These shipments

had been expedited rather than delayed.’’ They were sent

earlier to Lansing from Missouri than was normally Gone

(A. 108).

DiVito and Pranno informed Amabile that they would

need more money on:the job if Amabile was to get his $20,-

000. Amabile instructed Evans to ‘‘jack up’’ the price of

- the contract. Evans did so by preparing another bid some

$40,000 to $45,000 higher (A. 310). There was no need

to ‘‘jack up’’ the prices of the construction if extortion

was to be the means to obtain money.

In November, 1964, Amabile-instructed LaKey. to make

the first draw from the Riley Company. LaKey drew. up

the papers calling for a draw of $55,000 (A. 537). How-

ever, Evans reworked the figures and arrived at the amount

of $47,517.97 (A. 302). : :

. &

SO eT OLE ETT.

g- os

On November 12, 1964, LaKey obtained the first draw

from the Riley Company for its work in the amount of

$47,517.97 (A. 303). LaKey deposited $39,000 in the Carl-:

son bank.account, keeping $8,517 (A. 304). He said he

gave Pranno $8,000 in cash, eel err himself a

two weeks of his salary (A. 305). 4

At Amabile’s wank LaKey wiihares $20,000 in cash

and gave it to Amabile,on November 15, 1964 (A. 306-7).

LaKey and Amabile visited Evans, who was a patient in

a hospital, and Amabile gave Evans a ‘‘wad of money”’

(A. 301). : eae :

Numerous conversations took place where Amabile in-

structed DiVito, LaKey, Pranno and Evans that Riley was

not to learn of Pranno and Amabile’s connection with the

Carlson Construction Company. Amabile also told these

men that Riley was not to know that Evans was.in any way .

connected with the Carlson Construction Company (A.

140, 143, 281, 286, 347).

‘After the first draw had been made, LaKey complained

to Evans that he was unable to pay his bills, and- Evans

allegedly told LaKey not to worry: and stated: ‘‘I’ll talk to

Joe Shine and Joe Shine will talk to the man. We will

see that the money is in the. bank for you.”’ (A. 342). This

conversation again emphasized that Evans was intent on

receiving money for the Carlson Construction Company so

that the work could continue and the bills could be paid.

LaKey made a request for a second draw of $48,500 in

early January, 1965 (A. 345). Riley’s controller, ‘one

Sol Meltzer, refused to authorize a payout. Riley told.

LaKey that he would not authorize the payout becaus¢ he

learned that the suppliers on the job were not os paid

(A. 349).

LaKey then told Amabile ‘in Evans’ presence that the ,

second payout draw was turned down by the Riley people

(A. 346). Amabile told Evans that he wanted Evans

to go with LaKey to the Riley office the following morning

(A. 346). The next morning, Evans suggested to LaKey

that they should enter the Riley offices separately (A. 347).

Evans and LaKey spoke with Riley concerning the second

draw. and Evans said that complications had @gveloped on"

the job (A. 350), Riley again turned down LaKey (A. 351).

LaKey again returned to Amabile and informed him

that Evans and he had been turned down by Riley (A. 351).

At this meeting, Evans was not present. Amabile then told

LaKey, ‘‘You be here tomorrow morning. I’ll personally.

go with you to the office myself. 1’ll get this straightened

out once and for all.’’ (A. 351).

The next day, Amabile and LaKey went to the offices

of the Riley Company in Bellwood, Illinois and talked to

Riley. Riley told Amabile that they couldn’t pay because.

to do so would jeopardize his position- with the’ lending .

institution. _According to Riley, Amabile told Riley that

he had to pay LaKey, that LaKey was a friend of theirs; :

and that, if he didn’t pay, ‘‘all sorts of people would get

‘ mad’? (A. 533). Amabile said that Riley had no choice in

the matter; that he had to pay LaKey, that ‘‘the man’”’

wanted him paid. Evans was not present at this meeting

(A. 5345).

, Subooumentty, Riley authorized the payout by Lawn

Savings and Loan Association to Carlson Construction

Company in the approximate amount of $48,500, the pay-

ment alleged in the indictment to have been extorted from

him. .

)

AOR S CR

rar an ai beulades thas senshi aieahtn a thd cit ante al Ae a en

Riley testified that he authorized this payment because ©

he was afraid of Amabile. Over objections, he testi-

fied he was afraid because, ‘‘in previous meetings I had

been threatened’ repeatedly. I had been at numerous,

numerous meetings, where I was threatened with physical

harm, harm to my family, collapse of the company, ruina-

tion, employees threatened.”’ (A. 536-8). :

Over objections, Riley stated that Amabile and Nick

Palermo (not referred to in the mcieiinens anywhere) .

threatened him (A. 538-9).

Riley testified that as late as ibid, 1965, he thought

Evans was a very fine man (A. 730). :

_ From the second draw which LaKey received, he said

he withdrew $17,000 for Amabile er which LaKey got

$5,000) (A. 358-361).

“LaKey had gone to Florida after the payment of the

second draw and was called there by Evans. Evans told

him that there had been trouble on the job and that Ama-

bile wanted to see him (A. 361).

LaKey returned from Florida and in the presence of

Evans, Amabile told LaKey, ‘‘You’re not paying the bills,

you’re not taking care of the job. You got me in trouble

with Riley. Riley’s in trouble. You’re making Dave ©

Evans lose his job. You’re taking my man right out of

Riley’s. I don’t know, what is going on. You are caus-

ing nothing but trouble.’’ (A. 361-2). Since LaKey was

present at the time of Amabile’s threat, this conversation

- is an indication that.even at this late date Evans was not

' aware .of the threat and that Amabile was seemed

keeping ne of the threat from him. —

(b) — of Palermo-Amabile Threats Not Anywhere

Alleged in the Indictment.

. Riley testified that in pil, 1962, he was in the offices

- of Nick Palermo’s Melrose Park Plimbing Company.

Palermo asked him about a proposed building project in

Northlake, Illinois, and Amabile -told Riley that he, Ama-

bile, was the man in Northlake and that Riley was not go-

ing to build in Northlake without his permission. Amabile

told Riley it would cost him $70,000 (A. 546). A number of |...

subsequent meetings were held with Palermo and Amax .

bile in 1962 and at one of these Amabile asked. Riley if

he had the $70,000. Riley said he did not. Palermo said

that he had the ability to stop the project of Riley’s then

being constructed in Addison, Illinois. Riley said he

.could not pay $70,000. Amabile said to give him $30,000

in cash and “$40,000 in checks. Subsequently, Riley paid.

Amabile $30,000 in cash (A. 548-557).

Riley testified that in September, 1963, Palermo and

_ Amabile talked to him about the plumbing work for a

“project an Westmont, Illinois. Amabile told Riley he must’

give the plumbing work to Palermo. Riley objected to

the quality of Palermo’s ‘work. Amabile told Riley that

he was ‘‘nothing but a wise guy and he would handle

[him] with a baseball bat if [he] didn’t stop trying to be

a wise guy”’ (A.. 563-4). Riley asked to leave; Amabile

told him he could not do so. They said. that Riley’s con-

struction superintendent, one Hubley, was the cause of all

the-problems.. Palermo said that he would bury Hubley,

and Amabile added that he would hammer the nails in

Hubley’s coffin (A. 564). Then Amabile told Riley that

he knew where Riley’s mother lived, where his children

- went to school, and that he would-need a candy cane from

then on out if they did not get the plumbing ceieicen aig

565).

Evans did not know, nor had he ever met Battaglia dur-

ing the. period of the alleged conspiracy. Evans first

met Battaglia i in 1967 on the day this case was first called

in court (A. 858-4).

(d) The Defense.

The petitioner, Evans, testified in his own behalf. Though

he was pxecluded from denying many of the important

alleged conversations and occurrences and from introduc- _

ing affirmative evidence of his innocence, Evans did make

a general denial that lie was not involved in the crime

charged in the indictment (A. 919-920). Evans also testi-

fied that he never received any money from Amabile as

alleged by the Government witnesses - 901).

Evans testified that he was 52 years old and that he had

been gainfully employed in the construction business sincé

he had been 18 years old. He. had served with the United

States Army and had received an honorable discharge.

He had never been arrested (A. 850-1).

Evans also attempted to introduce evidence of his good

reputation in the buisness community through four (4)

witnesses who had known him for a long period of «time.

_ This evidence was declined by the trial judge acd 811, 816,

820, 839).

REASONS FOR GRANTING THE WRIT

1. Under Krulewich v. United States, 336 U.S. 440. (1949)

and Ingram v. United States, 360 U.S. 672 (1959),

a conviction for conspiracy to violate the Hobbs Act,

18 U.S.C. §1951, cannot be sustained on the theory of

“guilt by association where there is no proof of knowl-

edge of or acquiescence in the unilateral euigrtiensts

act of a co-defendant.

The decision of the court below is based on the theory

of guilt by association, specifically warned against by this.

Court in Krulewitch v. United States, 336 U.S. 440 (1949)

(Jackson, J., concurring). Upon evidence. of an associa-

tion with a person who has in the past been ‘“‘evil,’’ a

man is deemed to be accountable.for any ‘‘evil’’ act that

this associate may perpetrate. . |

Conceding that the petitioner was not aware of Ama- —

bile’s extortion, the court below relied upon the evidence

that ‘‘On this record, it is obvious that Evans knew of

Riley's fear of Amabile . . . It would be unreasonable to

‘suppose that Evans would be so closely associated with

Amabile in the scheme to defraud without realizing that

Amabile would be employing coercive means for obtain-

ing a second draw.’’ (Appendix A page 9 infra). The —

potential for abuse of this ‘‘birds of a feather’’ doctrine

is unlimited, Mere association replaces the fundamental |

principle of agreement in the law of conspiracy. This

theory should be considered as one of the ‘‘attempts to

broaden the: already pervasive and widesweeping nets of

conspiracy prosecutions,’? Grunewald v. United States,

353 U.S. 391 at 404 (1957).

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The danger inherent in the association theory is par-

ticularly evident in the case against the petitioner; even

according to the govetnment evidence, the petitioner was

an unwilling and reluctant associate of Amabile. (App.

364). Further, the circumstances of Evans’ relationship

with Amabile would lead Evans to believe that Amabile in-

tended to use non-violent means to obtain. money from the

Riley Management Corporation.

Viewing the evidence in the light most favorable to the

Government, the petitioner knew that Amabile had ar-

ranged for Henry LaKey, a ‘‘good, clean fellow,’’ to head

the Carlson Construction Company. (App. 128-9). Ama-

bile had also obtained the services of DiVito, a knowledge-

able sewer contractor, who could actually perform the con-

- tract behind the facade of the Carlson Corporation. Evans

knew that the contract prices were raised to. insure all

the co-conspirators receiving. their share in excess of the

costs of completing the contract work. Evans knew that

Amabile stressed that Riley should never find out that

. Amabile or Pranno were in any way connected with the

Carlson Construction Company. (A. 140, 143, 281, 286, 347).

There was to be no direct contact between Amabile and

Riley. These circumstances of necessity led Evans to be-

lieve that Amabile did not intend to repeat whatever ac-

tions had made Riley fear Amabile in the past.

In Carbo v. United States, 314 F.2d 718 (9th Cir, 1963),

a conspiracy to violate the Hobbs Act, the court reversed °

the- conviction of the defendant Dragna even though the

victim testified that he actually feared Dragna as being con-

nected with the underworld and associated Dragna’s ap-

_ pearance with the extortionist, Carbo’s, threat. Though

Dragna had a discussion with the victim, in which he told -

the victim ‘‘you are dealing with . - » big people and if your ~~

word is no good you are no good in this game,’’ there was

no evidence that he knew of or participated in the actual °

threat.. The Court rejected any suggestion that ‘‘those

having an underworld reputation have the burden of re-

fraining from acting in such a fashion (or, it would seem, -

from being seen in association with others) when it might

be construed as evincing an interested participation or

threat of violence.’’ Certainly if a man like Dragna who

was actually feared himself is not to be deemed guilty be-

cause of his association with men who in fact commit ex-

tortion, the non-violent petitioner should not be convicted

because of.the knowledge that his associate was feared

by the victim in the past.

The court below’s misplaced reliance on the precedents

of Pereira v. United States, 347 U.S. 1 (1954) and Lefco

v. United States, '4-F.2d 66 (3rd Cir. 1934), to support

its guilt by association theory demonstrates its: misun-

derstanding of the conspiracy concept. This Court’s de-

cision in Pereira stands only for the evidentiary rule

that if there is sufficient evidence of agreement to com-

mit the crime charged, a co-conspirator is responsible for

the acts and declarations. of another co-conspirator which

could have been reasonably foreseen to be necessary to ~

carry out that conspiracy. Pereira does not stand for the

boot strap method of proving the conspiracy itself by

means of assumption and references based on association.

The court below has done exactly what the court in

United States v. Peoni, 100 F.2d 401 (2nd Cir, 1938) warned

against. In Peoni, the court said:

‘fat times it seems to be supposed that once ‘some

kind of criminal concert is established, all parties are

liable for everything any one of the original partici-

pants does, and even for what those do who join later. -

Nothing could be more untrue. ... The confusion is

+ * IAEA ENE EET OT ONE

perhaps due to the fact that everything done by the

conspirators—including the declarations of later en-

trants—is zompetent evidence against all, so far as

it may fairly be thought to be in an execution of the

concert to which the accused is: privy, though that

doctrine too is often abused.’’

This confusion in the court below has resulted in peti-

tioner’s conviction and in an n illogical theory of the law of .

conspiracy. eens

In its opinion, the court below further expanded the

theory of guilt by association when it removed the require-

ment of the limitation of the scope of a conspiracy based

on the determination of the common understanding, an

aspect of. specific intent. In so doing, the Seventh Circuit

is in conflict with the Second Circuit, United States v.

Crimmins, 123 F.2d 271 (1941), the Ninth Circuit Twitchell

¥ United States, 313 F.2d 425 (1963), the Sixth Circuit,

United States v. Barnes, 383 F.2d 287 (1967) and, it is

submitted, with this Court in a v. Jada States, 360

U.S. 672 (1959).

The decision below held that a man who ‘‘embarked on

a criminal venture of indefinite outline’’ has to ‘‘take his

chances as to the,methods used by the other ‘co-conspira--

tors.’’? (Appendix A Page 11 Infra)

The evidence against the petitioner showed he entered

into an agreement with Amabile, Pranno, DiVito and

LaKey to obtain money from the Riley Management Cor- °

poration by fraud and deceit. However, the charges for

which he stands convicted were of a iced aad to extort

by means of threats and violence.

The basis of the proven plan or agreement was secrecy

and misrepresentations. “All conspirators agreed that the

one essential ingredient of success in this scheme was that

Amabile’s connection with Carlson Construction Com-

_ pany was not to be revealed to Riley and that Amabile was

to have no direct contact with Riley. How can a man’s

criminal responsibility rest on the assumption that he took

‘his chances’’ on activity that was in direct conflict with

the agreed method of the scheme?

In United States v. Crimmins, 123 F.2d 271 (2d Cir.

1941), Judge Hand faced the interlocking problems of

scope, the hearsay exception, and intent.” He pointed out

that although

each conspirator is chargeable with the acts of: his fel- —

‘lows done in furtherance of the joint venture; [the]

. acts so imputed must be in execution of the venture

as all understand it; not indeed in its details, but so

far as concerns those terms which constitute the sub-

stantive crime. It is never permissible to enlarge the

scope of the conspiracy itself by proving that some

. of the conspirators, unknown to the rest, have done

what was beyond the reasonable imtendment of the —

common understanding. . . (Emphasis added.) -

This court held in Stirone v. United States, 361 US.

212 (1960) that indictments charging violations of the

Hobbs Act must be narrowly construed. The require-

ment in a Hobbs Act conspiracy of an actual agreement

for violence was stressed in Carbo v. United States, 314 F.

2d 718 (9th Cir. 1963). In speaking of the defendant

Gibson, the court said at Page 734:

‘*As to Appellant, Gibson, charged in the conspiracy

counts, it must be noted that there are in fact two

distinct conspiracies. involved in the facts of the case.

(1) The underlying conspiracy to gain control of

Jordan. For business catia of his own, Gibson was

interested in furthering Carbo’s ends in this respect

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and it is clear that the evidence is sufficient to connect

him with this underlying conspiracy. (2) the charged

conspiracies to accomplish the underlying purpose by

extortion and threatening communications.

‘The United States suggests that proof of the first

is sufficient without more to constitute proof of the

second. This is vigorously disputed by Gibson, who

contends with justification that the existence of busi-

ness relations with Carbo is in itself wholly consistent

with innocence of the charged conspiracies .. . There

can be little doubt that Gibson had his own business

reasons entirely apart from those of Carbo and Paler-

mo for wishing such a fight to take place. The ques-

tion is whether the record can support a determination

that for these independent business reasons Gibson be-

came a party to the Carbo-Palexmo scheme for achiev-

ing control of Jordan through extortion and threats.’’

(Emphasis added).

The evidence shows no agreement between the petition-

er.and Amabile to obtain money by means of threats. or

violence and without evidence of such an agreement a

Hobbs Act conspiracy charge should not be sustained.

- This court in Ingram v. United States, 360 U.S. 672

(1959) rejected an attempt to create a federal conspiracy

violation where only a state substantive crime existed.

This court at page 680 stated

Without the knowledge, the intent cannot exist.

Further, to establish the intent, the evidence of know!-

edge must be clear, not equivocal. *.* * This, because

charges of conspiracy are not to be made out by piling

inference on inference, thus fashioning * * * a dragnet

‘to draw in all substantive crimes.

This Court should again denounce the unbridled expan-

sion of federal conspiracy jurisdiction.

2. The principles of Michelson v. United States, 335 U.S.

469 (1948) are violated when the District Court refuses

to allow evidence of the defendant’s good reputation

-in the business community when the crime charged

relates to improper activities in that business.

Evidence of a defendant’s character and reputation is

one of the most vital strongholds in his defense. This

Court has long-recognized the importance of character evi-

dence and in Michelson v. United States, 335 U.S. 469, 476

(1948) said, ‘‘This principle [of presenting character tes-

timony] is sometimes valuable to a defendant for...

~ such testimony alone ... may be enough to raise a reason-

able doubt of guilt .. .’’ 7

A declination by the trial.court of a defendant’s offer to

' prove his general reputation for honesty and integrity and

truth and veracity, is reversible error. Carnley v. United

States, 274 F.2d 69 (5th Cir. 1960)

The four character witnesses who testified in this case

had known petitioner from five to twelve years. They had

worked with him and were constantly in contact with him -

and other men in the community who had known and

worked with him. The witnesses testified that they had.-

discussed Evans with these other men. The witnesses were

‘then asked if they knew Evans’ general reputation in the _

community for honesty and integrity, truth ‘and veracity ~

and as a law abiding citizen. However, on approximately

24 occasions the trial court sustained’ the Government’s

objections to these questions (A. 811-16, .816-20, 820-27,

839-47).

‘The decision of the court below stated ‘‘... As to some

of the questions, this may have been an overstrict applica-

tion of Michelson. However, no foundation was laid to

. show that these witnesses knew any of the people who lived

EAR TT NT SPT

tm the community where Evans resided. Proof of reputa-

tion ‘ among a.limited group.such as fellow employees in a

particular building’ has been held inadmissible. 335 U.S.

at p. 481, note 17; Williams v. United States, 168 U.S. 382,

397; Kroot v. United States, 66 F.2d 449, 451 (7th Cir.

1933). Although a more liberal approach to character wit-

_ hess rulings has precedential basis, we adhere to Mr.

_ Justice Jackson’s precept not to ‘disturb rulings of trial

courts’ in this troublesome field except in rare instances 7

(335 U.S. at p. 480).’? (Emphasis added) (Appendix A,

‘Page 22 Infra)

This limitation of character evidence to the geographical!

area in which a man lives is unrealistic in view of the _

complex and everchanging society of today.’ This Court

should recognize that a man’s reputation at the place of

his day-in, day-out business is likely to be even more pro-

bative of his true character. In this regard Professor

McCormick’s statement is relevant:

The reputation is usually said to be limited to that

- which obtained in the community where the accused _

lived, but this should be extended to embracé any con-

siderable group with whom he constantly associated in

his business, work, or other continued activity, and

who might reasonably be thought to have a collective

opinion about him. C. McCormick, Handbook | of the

Law of Evidence § 158 at 335. (1954)

Cir. 1961) and Am. Jur. Proof of Facts Annotated

Character and Reputation Notes, Page 185. .

In United States v. White, 225 F.Supp. 514 — the

court said at page 522,

‘The community in which a man lives is not necessari-

ly a geographical unit, but is rather composed of those

relationships with others which arises where a man

. works, worships, shops, relaxes, and lives. Evidence

tending to show a defendant’s reputation in such

places 1 is no.more difficult to establish than his reputa-

tion in his particular city-block, which may or may not

be important in establishing the defendant’s reputa-

tion.’? -

Evidence of reputation in the business community was

particularly crucial to the petitioner since his criminal ac-

tivity was allegedly- against his employer. The petitioner

was portrayed as a disloyal employee of Riley. When a de-

fendant’s reputation involves a trait which affects the very

charge against him, a trial court exclusion of such evi-

dence is error. Robinson v. United States, 156 F.2d 574.

(D.C. Cir. 1946). a

This case affords an opportunity for this Court to en-

nuciate the principle that ‘a defendant is entitled to intro-

duce evidence of his reputation of good character in the

business community in which he works.

3. The petitioner was deprived of his right of cross-

examination guaranteed by the Sixth Amendment to

the Constitution when he was denied access to the

grand jury testimony of important government wit-

nesses, prohibited from determining the addresses of

thesé witnesses and from inquiring into their motives

in testifying.

This court: nile stated in Pointer v. Texas, 380 U.S.

400, 405 (1965) :

There are few subjects, ue upon which the Court

and other courts have been more nearly unanimous

than in their expressions of belief that the right of

PIELER OE PLT I

ag YN, TITY I ERRORS 5 8S

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. cross-examination is an essential and fundamental

requjrement for the kind of fair trial which- is this-

country’s ‘constitutional goal.

The three most important witnesses for the Goverunent.”

were DiVito, LaKey and Riley. The defense contended

that the credibility of each of these individuals was subject

to serious question. The testimony of these witnesses

concerning conversations and oral statements «made in

. various meetings were largely uncodrroborated. DiVito

_ and LaKey were accomplices, and Riley had _— rea-

sons for hostility towards the petitioner.

Counsel for the dibiodbi Amabile moved for the produc-

tion of the grand jury testimony of the witness DiVito.

The District Court asked counsel.to provide him with au-

thorities for its production (A. 195). Counsel for Bat-

taglia called the trial court’s attention to this Court’s rul-

ing in Dennis v. United States, 384 US. 855 (A. 233). How-

‘ever, the trial court informed all counsel that’ this motion

was denied (A. 390). <A similar motion for production of -

Riley’s grand jury testimony was denied in the same man-

ner (A. 689).

The opinion of the court below holds that ‘‘no’ particu-

larized need for this testimony was shown, nor was there

any showing that the ends of justice required production:’’

(App. A, p. 20 infra). :

It is submitted that this request for grand jury testimony

‘came within the scope of Dennis v. United States and is in

conflict with the decisions of Courts of Appeals in at least

four other circuits. See: United States v. Youngblood, 379

F.2d 365 (2nd Cir. 1967); Schlinsky v. United States, 379

F.2d 735 (1st Cir. 1967); Cargill v. United States, 381 F.2d

— 849 (10th Cir. 1967); Worthy v. United saree 383 F.2d

524 D.C. Cir. 1967.

23 pit

Counsel for the defendant Battaglia made inquiry into

_the residence. of the witness Riley. When Government

counsel objected and asked to be heard out of the presence

of the jury, the trial court sustained the objection without —

a hearing (A. 723). This ruling is contrary to the decision

of this Court in Smith v. Illinois, 390 U.S. 129. This error

alone requires a per curiam reversal in this case.

~ Counsel for\the defendants attempted to bring before

the jury the facts that Riley was under indictment for

theft in the State Court and that he was under investigation

by the. Internal Revenue Service for tax evasion and that =— }

his testimony was given-in hope of securing favorable treat-'

ment from local and federal law enforcement officers con-

cerning his illegal conduct (4.416, 617-8): Professor Mc--

Cormick has .commented : |

’

The law recognizes the slanting effect upon human

testimony of the ... self-interest of the witness in the

_ outcome of the case. Any such partiality, proceeding

from any acts, relatignships or motives, may be proven

to impeach credibility . . . - [one such instance is] :

in a criminal case when the witness testifies for the

state and it is shown that an indictment is pending

against him .. . C. MeCORMICK HANDBOOK OF

THE LAW OF EVIDENCE, §40, at 82, 83, 84 (1954)

See Harris v. United States, 371 F.2d 365 (9th Cir. 1967) ;

Wheeler v. United States, 351 F.2d 946 (1st Cir. 1965) ;

_ United States v. Masino, 275 F.2d 129 (2d Cir. 1960). As

the Second Circuit observed in Masino: |

Cross-examination is proper when its purpose is to

_ reveal bias or interést on the part of the witness

being examined ..... . It was highly relevant and ma-

terial to bring out that the state court charge... had

been quashed upon the intercession of the Assistant

United States Attorney as was claimed by the deferise

and not denied by the government. This is the kind

Lat ttaation where the widest possible cross-examina-

| ion should be permitted. The appellant was entitled

to have the jury know what had happened with re-

spect to the charge, including any part which repre-

sentatives of the government, had. played, so that the

jury could draw its own conclusions with respect to

possible motives for Brown’ s testimony. 275 r. 2d at

132.

It is obvious that the atmosphere in the courtroom was

such that petitioner and the other defendants were denied

effective use of their right of cross-examination guaranteed

” the Sixth Amendment to the Constitution.

CONCLUSION

For the foregoing reasons, petitioner respectfully submits

that the petition for a writ of certiorari should be granted.

Respectfully submitted,

RayMonp J. SMITH

105 W. Adams Street

Chicago, Illinois 60603

Menem A. Hart

134 North LaSalle Street

Chicago, Illinois 60602

Attorneys for Petitioner .

Se aR Hodes dai? Ws PORES Beers

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