Petition for Writ of Certiorari — Giordano v. United States

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~ [JOANN F. DAVIS, CLERK

IN THE

| Supreme Court of the Hnited States

Ocroser TERM, 1968 a

=—_ /68

- SatvaTore Barrac.is, Petitioner,

P

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Vv.

- Unitep States or AMERICA, Respondent.

_, PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS —

FOR THE SEVENTH CIRCUIT —

PE eto

EpwarD BE WILLIAMS

HarorD UNGAR | }

— 1000 Hill Building

4 Washington, D. ©. 20006

. Counsel for Petitioner |

Of Counsel:

MAURICE WALSH a

29 South La Salle Street

Chicago, Illinois

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TABLE OF CONTENTS

as Page f

COpERie BGROW ..50 sc 0ccccens cikpeeessaseeeccerken =» 7

I ok coed arkhnascddcians eahices pee ys a)

Questions Presented ....... meceeeceweceseene ces Me ; 2 =

Statutes ee eee Sevabie nas Rives: oe, h

Introductory Statement ..............ceeceueceevens 4 :

Statement of the Case .......... Se agieseasscces seee 4 j

Reasons for Granting the Writ ..... rrrerecrreerr tres

I | vaca vcnsacece TRU EER et geen ae ees meta > (25

IE “sce vaqcuudecas Be Keak ahead aaa pees’ a | |

DE, «cues coud eekauaeaeeenceeas . Leesiahen bes la .

Judgment .......... PTC ete FET eee ii aptade tc ee ;

Order Denying Rehearing .................. “canbe

a 68a

‘ me a. 3

TABLE OF AUTHORITIES °

CASES:

Alford v. United States, 282 U.S. 687 (1930) ..... So 3

Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968) .. 20

Cargill v. United States, 381 F.2d 849 (10th Cir.*1967) ‘20

City of Pittsburgh v. F.P.C., 237 F.2d_741 (D.C. Cir.

1956) ..... GY Sean ene OR re 19

"Dennis v. United’ States, 384 U.S. 855 (1966) ....2, 18, 19,

' Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 21

Glasser v. United States, 315 U.S. 60 (1942) .......... 12

Grunewald.v. United States, 353 U.S. 391 (1957) ...... 4,11

Jackson v. Denno, 378 U.S. 368 (1964) ............... 21

Johnson v. New Jersey, 384 U.S. 719: (1966) .......... ' 21

Kann v. United States, 323 U.S. 88 (1944) ............ 10

;

°

WD NAR uy, oot ee é : a

ii : Table of Contents‘Continued

: | | Page

Kolod v. United States, 390 U.S. 136 (1968) ...... 2, 24, 25

Linkletter v. Walker, 381 U.S. 618 (1965) ............ 21

National Dairy Products Corp. v. United States, 384

F.2d 457 (8th Cir. 1967) ..... Ee een Lory hee 20

Parr v. United States, 363 U.S. 370 (1960) :.......... 10

Smith v. Illinois, 390 U.S. 129 (1968) .......... 2, 4, 23, 24

United States v. Amabile, No. 16314 (7th Cir. 1968)

| , 20, 21, 22

United States v. Andolschek, 142 F.2d 503 (2d Cir.

EE wis caw caetatet caw rk akitua ba anak ese 13, 14

United States v. Barrow, 229 F. Supp. 722 (E.D. Pa.

le rr ree iar eee tee vases Cea ae

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

MEE duis 43 4S heen anne hc kuwkeeus peas acho cua a 14, 15

United States v. Crosby, 294 F.2d 928 (2d Cir. 1961) .. 14 -

United States v. Gradwell, 243 U.S. 476 (1917) ..... ices Oe

United States v. Falcone, 109 F.2d 579 (2d Cir. 1940) .. 16

United States v. Kensil, 295 F.2d 489 (3rd Cir..1961) .. 13

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

Sk Bee rer rr yerer ry ree er er er Seer 20

STATUTES AND RULEs:

| EN a ar ene es Reena 18

Re A” Se ee ote Dai, eas 1,3

18 U.S.C. § 2314 ...... hase eeaynesede ren see bux hes 17

ee SE, te ED ys 00 ws hk ten boob ven eck 2

MISCELLANEOUS:

President’s Commission on Law Enforcement and Ad-

ministration of Justice, The Challenge of Crime in

OP VOE ITED cSeinboccnscbcanevéooscecce 18

Developments in the Law: Criminal Conspiracy, 72

s, BMEU. Fi BOO. We CRUE ns ccc tvencectcerevonce 16

Schwartz, Federal Criminal Jurisdiction and Prose-

cutors’ Discretion, 13 Law & Contem. Probs. 64

Deo ee eR ne on ees 18

IN THE

Supreme Court of the United States

OcToBER TERM, 1967

(re

No.

SatvaTorE BarraGia, Petitioner,

v.

Unitep States or AMERICA, Respondent. _

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Salvatore Battaglia, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit, affirm-

ing the judgment of conviction for conspiracy to vio-

late the Hobbs Act, 18 U.S.C. § 1951, in the United

States District Court for the Northern District of

Illinois, Eastern- Division.

OPINION BELOW

The opinion of the Court of Appeals is not yet offi-

cially reported. It is printed in the Appendix to this

petition. (App. la).

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2

JURISDICTION

The judgment of the Court of Appeals was entered

on January 9, 1968. (App. 66a). A motion to re-

mand to determine the extent of electronic eavesdrop-

‘ping was denied on April 10, 1968. (App. 44a). Peti-

tion for rehearing was denied on April 17, 1968. (App.

67a). On May 6, 1968, Mr. Justice Marshall extended

the filing time to and including June 10, 1968. The

jurisdiction of this Court is invoked under 28 bd S.C.

§ 1254(1). |

QUESTIONS PRESENTED ‘

1. May federal criminal jurisdiction be sustained

- under the conspiracy to extort provisions of the Hobbs

Act without a showing, independent of the rule of

vicarious guilt, that a defendant specifically contem-

plated or would have tolerated the behavior of a co-:

defendant alleged to constitute the extortion?

2. Whether, under Dennis v. United States, 384 U.S.

855 (1966), to obtain the grand jury testimony of a

key government. witness at trial, a conspiracy defend- |

ant must do more than request the prior testimony for

. eross-examination purposes? When a Circuit first

gives effect to Dennis, may it deny application to trials

held after Dennis ue announcing. a hier rule pro-

spectively?

3. Whether, under Sulth’ v. Illinois, 390 U.S. 129

(1968), counsel may be denied the opportunity to ask .

a key government witness where he tives now?

4. Whether in camera ex- parte inspection by the

Court of Appeals of materials the Government moni-

tored illegally comports with this Court’s order in

Kolod v. United States, 390 U.S. 136 (1968).

i

STATUTES INVOLVED

18 U.S.C. § 1951, reads in part: | °

**§ 1951. Interference with commerce ie threats

or vidlence. (a) Whodever in any way or degree

obstructs, delays, or affects commerce or the move-

ment of any article or commodity in commerce,

by robbery or extortion or attempts or conspires - i

so to do, or commits or threatens physical violence ,

_ to any person or property in furtherance of a plan |

or purpose to do anything in violation of this sec- .

tion shall be fined not more than $10,000 or im-

prisoned not more than twenty years, or both.

ROL NE ETE TEIN LORE

(b) As used. in this section—.

(1) The term ‘robbery’ means the oan

taking or obtaining of personal property. from the

person or in the presence of another, against his

will, by means of actual or threatened foree, or

violence, or fear of injury, immediate or future, to

his person or property, or property in his custody

or péssession, or the person or property of a rela-

tive or member of his family or of anyone in his a

company at the-time of the taking or obtaining. _

(2) The term ‘extortion; means the obtaining

of property from another, with his consent, in-

duced by wrongful use of actual or threatened

force, violence, or fear, or under color of official |

right.

(3) The term ‘commerce’ means commerce with- f

in the District of Columbia, or any Territory or

Possession of the United States; all commerce.

between any point in a State, Territory, Posses-

sion, or the District -of Columbia and any point

outside thereof ; all commerce between points with-

in the same. State through any place outside such

State; and all other commerce over ‘which the

United States had jurisdiction.”’

*

FELT ET POTS 2

ore MEHR

4

' INTRODUCTORY STATEMENT

'**Prior cases in this Court have repeatedly warned

that we will view with disfavor attempts to broaden.

iue already pervasive and widesweeping nets of con--

spiracy prosecutions.’’ (Harlan, J.). Grunewald v.

United States, 353 U.S. 391, at 404 (1957). This case

presents an opportunity for the Court to give substance

to its repeated warnings.

Petitioner was convicted under the Hobbs Act of

| conspiring to extort, without a trace of a showing that

he ever contemplated or would have tolerated the -

threats alleged to constitute extortion. On the novel

theory that the conspiracy was of ‘‘indefinite outline’’,

acts and declarations of alleged co-conspirators nee

swept into evidence against him without any inde-

pendent proof that he agreed to or would have toler-

ated such behavior. This new conspiraéy ‘‘net’’ also

unlawfully expands the reach of the Hobbs Act, since -

federal jurisdiction under that Act is otherwise limited

by the statute to ‘‘[i] nterference with commerce by

threats or violence’’.

. The case also presents other questions of general

importanes « disclosure of grand jury minutes; the

scope of Smith v. Illinois, 390 U.S. 129 (1968) ; pro-

cedures for determining the impact of Government

eavesdropping. The relevant facts are stated in con-

_ nection with each question presented.

_ STATEMENT OF THE CASE

The substance of the indictment was that petitioner ~

Battaglia and defendants Evans and Amabile conspired

to extort $48,500 from William Riley, President of the

Riley Management Corporation, constructing apart-

5)

ments in Lansing, Lllinois. (R. 19-21). The case

against petitioner rested entirely upon attributing to

him, by means of the rule of vicarious guilt, the thireat-

ening acts and declarations of co-defendant Amabile.

Since this petition contends that there was no basis

for invoking that rule, the critical evidence pertaining

to petitioner Battaglia must be recounted. For con-

venience, a condensed and chronological summary is

presented here, but petitioner otherwise relies upon the

summary given in the majority opinion for, the Court

of Appeals and viewed in the light most favorable to

the government (App. la).

In June, 1964, Riley asked defendant Evans to line

-up subcontractors for sewer work at Lansing, but to

keep the job secret from defendant Amabile (also

known.as Joe Shine) and others. (R. 502). A few

days later, however, Amabile demanded the plumbing

contract of Riley and threatened to use a "baseball bat

to get it. (R. 506-07). |

Early in the summer, Amabile told Rocco eee,

and Mike DiVito, a sewer contractor that the Lansing

* work. could not be obtained if their names were on the

contract.?, They had to come up with a_‘‘good clean

guy’. (R. 124). Accordingly, in order to decéive

Riley, Pranno and DiVito hired Henry La-Key and

set up the Carlson Construction and Equipment Corpo-

ration with La-Key as nominal president. (R. 126,

127, 130, 132). Amabile was satisfied that La-Key was

1 Record references are to the printed transcript of the record

in the Court of Appeals, the Joint Appendix.

2Pranno, an alleged co-conspirator, was not made a defendant

herein. .

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6

‘‘clean’’, but before he agreed to the arrangement, he

demanded that $20,000 be available for him. (R. 128).

_ At about the same time, Evans told Riley that he

had selected thé Carlson Company because it was run .

by La-Key and its reputation was excellent. (R. 516).

The contract was then awarded to Carlson under an

arrangement whereby Carlson would be paid through

pay-out slips issued by Riley’s company. (R. 519).

When work began in the fall, Amabile told ‘La-Key

that Evans was his man in Riley’s office and that Di-

Vito should be kept away from the construction site

because if Riley’s men saw DiVito there, Evans would

be in trouble. (R. 281). On Amabile’s instructions,

_ La-Key prepared the papers for the first pay-out draw.

-Evans approved the papers so that the ‘‘clean’’ La-Key

might present them to Riley for approval. (R. 300,

301). After approval, La-Key received the first draw

and deposited most of it in the Carlson account, but he

later withdrew $20,000 for Amabile.: (R. 303-306).

In the late fall at a farm in Illinois, Amabile intro-

duced the ‘‘clean’’ La-Key to petitioner Battaglia. He

described La-Key as a man “‘running the job for them”’

in Lansing. (R. 331). Amabile and Battaglia had a

private conversation for twenty or thirty minutes.

(R. 332). La-Key then heard petitioner ask Sune

_why Evans was getting ‘‘that kind of money”. (R.

332). Amabile explained ‘‘I made a deal with the man.

The man got us the job. I made a deal with him. I

_ will take care of it.?” (R. 332). Although he had told

La-Key that Evans’ cut would be $5,000, Amabile told.

This reference to ‘‘the man”’ clearly points to Evans, not to

Battaglia.

os

petitioner Battaglia that it would be $7,500. (R. 297,

- 333).

Shortly, thereafter, La-Key told Evans that he had

been to the farm and Evans warned him not to talk

about it. (R. 340). Later in December, Pranno ob-

jected to Amabile that La-Key should not have been

taken to the farm, But Amabile responded, ‘‘I have

had him down to the farm. The man says he is okay.’”

In January, 1965, La-Key told Evans that he needed

more money to pay bills. Evans responded that he

would talk to Amabile and ‘‘Joe Shine [Amabile] will

talk to the man.’”’ ‘‘We.will see that the money is in

the bank for you.’’?* Amabile then told La-Key to pré-

pare the papers for a second draw. (R. 343). But

when Amabile learned that Riley would not authorize

the draw, he and La-Key went to Riley’s office.” (R.

351-2). Riley explained why, but Amabile responded

that, ‘‘the man’’ wanted payment and that otherwise

‘This is the first, but not the only indication in the record

that Amabile was capable of action independent of any under-

standing he may have had with petitioner —— See also

*(R. 174).

5 The majority opinion suggests that this reference to ‘‘the man”’

points to Battaglia.

® The majority opinion concedes that this reference to ‘‘the man’’

may have pointed either to Battaglia or to Riley.

7 Riley refused authorization because Carlson had not been pay-

ing its bills. Amabile complained of that to La-Key and said that

’ as a result he was getting in trouble with Riley and ‘‘making Dave

_ Evans lose his job. You are taking my man {Evans} right out of

Riley’s’’. (R. 362). L--Key .told Amabile that there was no,

money in the Carlson account because Amabile had bled it. (R.

363). La-Key also complained to Evans and asked him why he

didn’t get out of the business. Evans replied: ‘‘I can’t get out. .

_I 4m too deep with Joe Shine. I know too much about the other

people.’’ (R. 3@4). . ’

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8

there would be ‘‘all sorts of trouble.’’?* (R. 535).

Riley then authorized the second draw of $48,512.48

and testified that he did so in fear of physical harm

and economic ruin. (R. 538).

In late January, 1965, after the $48,000 had iia

obtained from Riley, (i.e., after the object of the al-

leged conspiracy had been achieved), Pranno told

Amabile that he was going to ‘‘the farm”’ to see ‘‘the

man’’. (R. 161). Still later, in February or early

March, Pranno, DiVito and Amabile met at.the farm

with petitioner Battaglia. Pranno mentioned that

$20,000 from the Lansing project’ was intended for

Battaglia. Battaglia nodded. The second time the

$20,000 was mentioned, Battaglia said ‘“‘Yes’’. (R.

171). When Pranno spoke et of _La-Key,

Battaglia said: , 3

‘“« “Well, I'don’t think Hank La- Key i is sah a bad .

guy, I like to work with him’, that they had other

8 The majority opinion concludes that this excerpted reference

to ‘‘the man’’ points to petitioner Battaglia. But in its full con-

text the reference is far from clear and, indeed, more plausibly

points to’ La-Key as the one to whom payment was due. Riley

testified that ‘‘He {Amabile] told me, ‘the man’ said I had to pay

him and he told me if I didn’t pay him there would be all sorts

of trouble... .’’ (R. 535) -La-Key, also a government witness

testifying to the same conversation, heard Amabile say: ‘‘The

man’s got his money coming, Bill [Riley], I want you to pay his

money.’’ (R. 352) -Shortly thereafter, Amabile turned to La-Key

and said ‘‘You’ll get your money now’’, and then turned back

to Riley and said ‘‘ Don’t forget, Bill I want you to pay this. man’

(R. 353) And ultimately, La-Key did receive a share of the sec-

ond draw. (R. 360-61).

In any event, even if every reference to “‘the man’’ in this record

is properly regarded as pointing to petitioner Battaglia, there is

stil no evidence that petitioner authorized or would have tolerated

the threats or violence required for a Hobbs Act conviction. Peti-

tioner may have been ‘‘the man’’ behind an agreement to deceive.

But it does not follow that he was ‘‘the man’’ behind an agreement

to use threats or violence.

9

things coming up, and that they could use him -

again because he was clean.” ER. 1712"

Apparently, petitioner had no Snondiadibe: Of ty. |. cats, .

for he still thought Riley had been deceivea by the

“‘elean’’ La-Key.* .

Riley testified that he had never met petitioner Bat-

taglia, although he had seen .him once in Amabile’s

nightclub in early 1964. (R. 496). His attempt to

substantiate that he knew petitioner as ‘‘the man’’ was

excluded by the court. (R. 49%, 581-82). Riley also .

testified that Amabile had threatened him in 1962, two

years prior to the alleged conspiracy, in connection

‘with work on a wholly different project in Northlake,

Illinois. (R. 559-66). Amabile used the expression

‘‘the man’’.at that time as well, although there was no

evidence linking that use of the name with the peti-

tioner. And Riley did not testify that he understood

the reference to point to Battaglia at that time. (R.

559-66). - a -

In the absence of any evidence, then, that the peti-

tioner ever engaged in, authorized, or would have toler-

ated threats or violence, Judge Julius J.. Hoffman gave

the instruction that permitted the jury to consider

against petitioner the threatening statements and

gestures made by Amabile. (R. 741-42).

® Since the $48,000 had already been obtained from Riley, it is

arguable that these statements by Battaglia were inadmissible.

Since the object of the alleged conspiracy had been achiéved, it.

is difficult to understand how these statements were made ‘‘in

furtherance’’ of any conspiracy. But even if the statement was

admissible, it is not evidence that Battaglia authorized or would

have tolerated threats or violence. On the contrary, it seems plain

that Battaglia thought that Riley had been neery deceived

by the ‘‘clean’’ La-Key.

4

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The Court of Appeals, Judge Swygert dissenting,

approved of that instruction. Most significantly, how-

ever, the court did not pretend that there was evidence,

independent of the rule of vicarious guilt, that peti-

tioner specifically participated in or would have toler-

ated a scheme to extort-by threats or violence. Instead; ,

the court relied upon a radical extension of conspiracy

theory (App. 10a) :

. the jury could infer that Battaglia had em-

see on a criminal venture of indefinite out-

: . [citation] ... Being an associate of Amabile

‘this venture, ‘Battaglia is properly chargeable

with knowledge that his confederate, Amabile,

' would resort to threats if necessary to extract

money from Riley. Battaglia had to take his

chances as to the methods used by the other co-

conspirators.’”’ (Emphasis supplied).

REASONS FOR GRANTING THE WRIT

mo CONSPIRACY

A. “Indefinite Outline” can

At the heart of this case lies a theory of conspiracy

law that extends beyond control both -the sweep of

conspiracy prosecutions in general and the reach of

federal conspiracy jurisdiction under the Hobbs Act.”,

The decision below stands for a novel and wholly un-

warranted proposition of conspiracy law: Upon evi-

dence of an agreement to embark upon some ‘‘crimi-

nal’’ venture, a man is responsible fax any crimes his

associates may commit,*even if they were beyond his

1© The Court may therefore exercise both its power of supervision —

over criminal. justice in the federal courts, and its traditional

vigilance over the limits that Congress has set upon federal crim-

inal jurisdiction. United States v. Gradwell, 243 U.S. 476 (1917) ;

Kann v. United States, 323 U.S. 88 (1944) ; Parr v. United States,

363 U.S. 370 (1960).

cad

11

understanding and would have subverted the plan Pte

which he did agree. He must “ ‘take his chances’ as

‘to. the methods used by the other _ €o-conspirators’”.

‘ (App. 10a).

This ‘‘indefinite outline” theory of vicarious guilt

should plainly be regarded as one of the “attempts to

broaden the alréady pervasive and widesweeping nets

of conspiracy prosecutions” that this Court has prom-

ised to ‘‘view with disfavour’’, Grunewald v. United

’ States, 351 U.S. at 404 (Harlan, J.).

In this case, the theory led to a Hobbs Act conviction

of a petitioner who may well have agreed to a plan”

to obtain money from another by deceitful means. He

may well have thereby violated some state law. But

he was convicted, not of an-agreement to use non-

violent means, but of conspiraey to extort by threats ae

or violence. It by no means follows that one who -

would embark upon shady business would also cross

the dark line to violence. But a conspiracy prosecution

can easily sweep him across that line if this Court per-

mits the theory used below to prevail. For all that is

required is some evidence of threats or violence by

someone, and some evidence that defendant partici-

pated in’some shady’agreement with that person. At

that point, the ‘‘nets’’ of the doctrine employed below

first expand to describe the agreement as a ‘“‘criminal

venture of indefinite outline’, and then contract to en- |

‘snare each defendant in vicarious guilt for the threatep-.

ing acts and declarations of another. He has, according

to the theory, taken ‘‘his chances”’ on the means others

~ would use. ae 5. |

The treacherous character of that theory is ; manifest

in the present case. For ever in the light most favor-

able to the government, the evidence of petitioner’s

involvement pointed, if anything, to.a desire to keep .

12

Riley unaware of the identity and character of those

with whom he dealt. The Carlson Company was set

up for just that purpose. And La-Key was approved

as its head just because he was ‘‘clean’’. Indeed, more

~ than a month after the money had been obtained from

Riley, petitioner had not-learned of the threats that had

been made and still thought the deceit had succeeded.

If any venture was proved, then, it was one of ‘‘definite

~ outline’’, not subject to the Hobbs Act, that could only

have been subverted by threats or violence. It does

violence to common sense to suggest that petitioner

~~ took “his chances’’ on that.

The conspiracy theory announced below also does

violence to the unquestioned requirement that the ex-

istence of the conspiracy and the defendant’s connec-

tion with it must be proved by evidence from an inde-

_ pendent source before ‘the hearsay statements and acts

of alleged co-conspirators may be admitted against him.

Glasser v. United States, 315 U.S. 60, 74-75 (1942).

_ “Otherwise hearsay would lift itself by its own boot-

straps to the level of competent evidence.” 315 US. .

at 75.

Yet it is precisely the use of the bootstrap that this

-ease would authorize. For whatever evidence there

may have been of another understanding, there was

no independent evidence that petitioner conspired to

use extortion. He was connected to. a conspiracy to

extort only by ignoring the evidence of his actual under-

- standing, and then by labelling the venture a ‘‘criminal

venture of indefinite outline’. Since an ‘‘indefinite

outline’’, by definition, can embrace’ anything. it took

only a bootstrap to say that he must have agreed to,

or taken ‘‘his chances”’ on, the use of threats or vio-

lence. If this Court permits such a theory of con-

spiracy.to prevail, it will have substantially discarded

13

the independent evidence limitation upon the tech- ”

niques by which prosecutors transmit guilt vicariously

in conspiracy cases.

The Court should note as well that the conspiracy

‘ theory used below is entirely unprecedented. The

Court of Appeals relied upon an excerpt from United

States v. Andolschek, 142 F. 2d 503, 505 (2d Cir. 1944),

the case in which the term ‘“‘indefinite outline’’ first

appeared. But it was used in Andolschek for an en-

tirely reasonable purpose. One appellant, convicted

of conspiring to accept bribes, had argued that since

‘his duties were quite different from the other alleged

co-conspirators, he could only be convicted of a bribery

conspiracy narrower in scope than the one charged.

Reversing and giving directions for a new trial,

- Judge Learned Hand left open the possibility that a :

man who has conspired to accept bribes may be a part

of a larger conspiracy with others who agree to the

same ‘means.. But nothing in his language, or in the

cases that have repeated it, ever suggested that one who

agrees to accept bribes or engage in deceitful activity

would also be responsible for violence committed by

others." See United States v. Kensil, 295 F. 2d 489,

1 Judge Hand wrote: ‘‘It is true that at times courts have

spoken as though, if -A. makes a criminal agreement with B., he

becomes a party to any conspiracy into which B. may enter, or may

have entered, with third persons. That is of course an error: the

scope of the agreement actually made always measures the con-

spiracy and the fact that B. engages in a conspiracy with others

is as irrelevant as that he engages in any other crime. It is true

that a party to a conspiracy need not know the identity, or even

the number of his confederates ; when he embarks upon a criminal ©

venture of indefinite outline, he takes his chances as to its content

and membership, so be it that they fall within the coiamon pur-

poses as he understood them, Nevertheless, he must be aware of

those purposes, must accept them and their implications, if he is

to be charged with what others may do in. execution of them.’’ 142

F, 2d 503, 507.. (Emphasis supplied).

5 a eet

14

491 (3rd Cir. 1961) ; United States v. Crosby, 294 F. 2d

928, 945 (2d Cir. 1961) ; United States v. Barrow, 229

F. Supp. 722, 734 (E. D. Pa. , 1964). :

It makes eminent sense to say that: a member of a

conspiracy need not know each detail of membership

or content in order to be held responsible for them.

In that sense, almost every conspiracy has an ‘‘indefi-

nite outline.” "* But the shift from deceitful to violent

means is no such mere detail. That shift involves the

commission of a new crime—and one ‘of an entirely

different nature. And the shift is particularly radical

where, as in this case, it would have subverted the

original understanding. For good. reasons then, Judge

Hand made plain in Andolschek that it is reversible

error to attribute partnership in one venture upon no. ©

more than evidence of partnership in another.

The abuse in this case of - Judge Hand’s ‘‘indefinite

outline’ language becomes even clearer when compared

with another of his statemnts on conspiracy law. In.

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

1941), the Second Circuit reversed a conviction for

conspiracy to transport stolen securities in‘ interstate

commerce, even though there was sufficient evidence

that the defendant had agreed to handle the stolen

securities. There was no evidence, however, that the

defendant knew of or would have tolerated the inter-

state traffic alleged.

Judge Hand ruled that ‘absent an evidence,: the

defendant, clearly a partner in the venture, could not

12 Tt is also possible, of course, that some conspirators may agree

to a plan of ‘‘indefinite outline’’—one in which any means may be -

used to achieve a given end. Sec United States v. Crimmins, 123

F, 2d 271, 273 (2d Cir. 1941). But there was no evidence what-

ever of such an agreement in this case.

15

be held responsible for the means his co-conspirators

used that made the venture a federal conspiracy:

“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 intendment of the com-

mon understanding. ... In the case at bar it

. might have been an implied term of the agreement

that Crimmins should take bonds coming from any .

source; if it had been, he could have been found

guilty of the conspiracy, for such an agreement

would have dealt with the place of the theft, even

though it did no more than provide that the place

made no difference. A continued indifference tu

the source of the bonds, coupled with knowledge

that in some cases they had come from beyond the

state, would have been evidence of such an agree-

ment. But that was not the situation... . The:

jury might have indeed concluded that if he had

known that they came froin outside the state, it

would have made no difference in his conduct; but

that is not eneugh; it would be no more than to

say that he would have been willing to make an

agreement which in fact he did not make.’’ United

States v. Crimmins, supra, at 273. (Emphasis

supplied).

In short, in’ the absence of evidence that Crimmins

_would have tolerated an open-ended venture of ‘‘in-

definite outline’’, he took no ‘‘chances’’ that the inter-

state acts of others would supply the required federal

element in a conspiracy case against him. Likewise,

petitioner Battaglia cannot be held to have taken ‘‘his

chances’’ on threats or violence, for there was no evi=

dence that he made an open-ended agreement to tolerate

any means that others might use. The required federal

element—threats or violence—was supplied against

‘petitioner only by turning the careful language of

, ;

se |

ROLE RI TERRE EE EN

.

OTN Tie We HS Shi ae 8 Ble she as

Ne omen

SNe

oa

Learned Hana to a purpose ‘that Hand would have

found repugnant."

B. Unlawful Expansion of Federal

Criminal Jurisdiction

If this Court permits the ‘‘indefinite outline’ theory

to. prevail, it will also have dicensed an insidious device.

for expanding the reach of federal criminal jurisdie-

tion beyond Congressional intent. In this case, a re- ’

quired federal element under the Hobbs Act, wholly

missing from the evidence, was supplied by that boot-

strap theory. In the next conspiracy case, the theory

may be used again to defeat Congressional intention by

expanding the reach of yet another federal statute. —

The Hobbs Act drew an unmistakably clear line

around federal criminal jurisdiction. It includes cer-

tain kinds of violence and excludes non-violent activi-

~ 13 The court also abused other language authored by Judge Hand.

‘‘Since Battaglia had a stake in the outcome of the’ conspiracy,

even the stringent test of conspiracy liability evolved by Judge

Learned Hand in United States v. Falcone, 109 F. 2d 579, 581 (2d

Cir. 1940), affirmed, 311 U.S. 205; was satisfied.” In this con-

text the ‘‘stake in the outcome”’ test is no more than. a rephrasing :

of the ‘‘iffdefinite outline’ theory: if a man has a stake in the

outcome of a venture, he takes ‘‘his chances’’ on any means that .

may be used—+.e., the venture necessarily has an ‘‘indefinite out-

line’’ as to means. Moreover, the ‘‘stake in the: outcome’’ test

- was designed for an entirely different purpose—to hold that

even if someone knows of an illegal consequence that will likely

follow upon his own legal activity, he is not liable in conspiracy

unless he also promotes the illegal venture and has a ‘‘stake in

its outcome’. 109° F. 2d at 581. The test has, thérefore, always

been regarded as addressing itself. to the question of what “in

addition to knowledge of the object is necessary to constitute agree-

ment to accomplish it’’. See, Developments-in the Law: Criminal

Conspiracy, 72 Harv. L. Rev. 920, 931. It was not designed to

determine whether one who has knowledge of and a stake in the

outcome of a plan is also responsible for another plan designed to

_ achieve- the same object.

Doin

17

ties.“ Yet with no more than a twist of ‘conspiracy |

law, the court below turned the Hobbs Act into a federal

weapon against non-violent business activity. .

. Petitioner’ s activity may have fallen afoul of some

state law. But he stands convicted under a federal

_ law that was carefully drawn to Jeave questions about

such activities to local law enforcement. .We do not

say here that Congress. was constitutionally barred

from bringing such conduct within fhe Hobbs Act.”

But it chose not to do so, and this Court should not

permit federal prosecutors to undo that choice. Such

a usurpation of legislative prerogative is all the more

sinister since it was achieved by inventing a doctrine

of conspiracy law unfounded in precedent or policy.

And this doctrine, in other statutory contexts, may

14The heading of the statute presents the limitation: ‘‘Inter-

ference with Commerce by Threats or Violence’’. And the body |

of the statute, section (a), specifies that the federal ban extends

only to interference ‘‘by robbery or extortion’’ and to one who

‘“‘commits or threatens physical violence’ in furtherance of such

purposes. The definition paragraphs in section (b) define only

“robbery” and ‘‘extortion’’, and each definition sounds in ‘‘force’’

‘‘violence’’, and ‘‘fear of injury’’. The House Report on the bill,

presented by Representative Hobbs, likewise plainly limits the

statute’s reach:

‘‘The objective of Title I is to prevent anyone from obstruct-

ing, delaying, or affecting commerce, or the movement of any

article or commodity in eommerce, by robbery or extortion as..

defined in the bill .... The bill would outlaw two kinds of

criminal interference with interstate commerce... .’’ (Em- °

phasis supplied). H. Rep. No. 238, 79th Cong., 1st Sess.

15 Congress has dealt with schemes to defraud private persons

in another statute. 18 U.S.C. 2314. But even there it carefully

limited Federal criminal jurisdiction to cases in which the person

- defrauded has been transported in interstate commerce, in execu-

tion or "concealment of the scheme. . *

pall

io ei

: is

18

likewise be used to invade the domain of state authority y. -

in flat violation of Congressional intent. !

Such invasions of state jurisdiction are not merely

of technical concern.: ‘‘ Federal intervention also has

a tendency to weaken the enforcement efforts of state

authorities ....’’ That observation was made by Pro-

fessor Louis B. Schwartz whom Congress has ¢urrently

entrusted with.direction of the National Comission on

Reform of Federal Criminal Laws."* By creating that

Commission, Congress has once again demonstrated its

intent to insure the rationality of federal criminal

jurisdiction and the proper allocation of law*enforce-

‘ment tasks as between the local and national govern-

ments.'’. These Cangressional efforts to draw clean and

sensible jurisdictional lines come to naught if those

lines can be obliterated by the kind of-conspiracy ©

er upon which this conviction rests.

2. DENIAL OF GRAND JURY TESTIMONY

In Dennis v. United States, 384 U.S. 855, this Court

recognized the particular injustice done when con-

spiracy defendants are denied grand jury testimony

of key government witnesses for purposes of cross-

examination. Since ‘‘[a] conspiracy case carries with

it the inevitable risk of wrongful attribution of re-

‘sponsibility to one or more of the multiple defendants

re e especially important that the defense, the

judge and the jury should have the assurance that the

16The statute creating the Commission is Public Law - 89-801,

80 Stat. 1516. Professor Schwartz is the executive director. His

observation was made in the context of an article on Federal Crim-

inal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contem.

- Probs. 64, 70 (1948).

17.That federal law enforcement activity should support, and

not undermine, local incentive was a concern reflected as well in

the report of the President’s Commission on Law Enforcement and

Administration of Justice, The Challenge of Crime in a Free

Society, Chapter 13 (1967).

19

doors that may lead to truth have been asain: soap

Id. at 873.

The wrongful attribution foreshadowed in Dennis

came to pass here. Throughout the trial, counsel ap-

prised the judge that no evidence had been presented

to connect petitioner with the conspiracy charged.

And, as in Dennis, ‘‘[t]he charge could not be proved

on the basis of evidence exclusive of that’’ given by

the key government witnesses—DiVito, La-Key and

Riley—whose grand jury testimony was requested.”

18The Court of Appeals stated that petitioner requested only

DiVito’s testimony. (App. 18a) Consequently, it limited its dis-

cussion to that denial. That denial alone warrants the granting

of certiorari.

But the record, as a whole, shows that petitioner did not waive .

his claim with regard to La-Key and Riley. . When counsel for

Amabile moved for DiVito’s grand jury testimony on cross-exam-

ination, the court asked him for authorities in support of the

motion. (R. 195). Shortly thereafter, the court stated that the

research need not .be done since the motion’ would be denied.

Counsel for petitioner then adopted the motion and cited Dennis

in support. The court immediately reiterated the denial. (R. 233).

Later, counsel for Amabile moved for La-Key’s grand jury tes-

timony on cross-examination. But the judge summarily denied

the motion in words strongly suggesting that he would not enter-

tain such motions with respect to any witness (R. 390) :

_ “T think we have already ye aia it wasn’t you but

another lawyer. I deny your motion”’

Nevertheless, counsel for Amabile moved for Riley’s testimony

on cross-examination later on. Again the court denied the motion

summarily. (R. 689). Thus, counsel: for petitioner permitted

Amabile’s lawyer to move for production and explicitly adopted

the first motion. It would have been futile to repeat these motions

with respect to each witness since it was apparent that the trial

judge was not willing to hear argument on Dennis or consider the

matter in any detail. Under such circumstances, repetition of

the motion would only have exposed counsel to ridicule i in the eyes

of the jury. See 1 Wigmore, Evidence, 318, 331 (3d. Ed. 1940) ;

City of Pittsburgh v. F.P.C., 239 F. 2d 741, 748 (D.C. Cir. 1956) ;

Sanchez v. United States, 293 F. 2d 260, 265 (8th Cir. 1961).

ae

,

eS aM cnc Sh «

384 U.S. at 872. Moreover, just as in Dennis, ‘‘[t]he

testimony of the . . . witnesses concerned conversations

and oral statements made in meetings. It was largely.

. uncorroborated. When the question of guilt or in-

nocence may turn on exactly what was said, the defense

is clearly entitled to all rélevant aid whieh is reason-

ably available to ascertain the precise substance of the

statements’”’.- 384 U.S. at 872-3. And as in Dennis, |

‘“‘[t]wo of the witnesses [here DiVito and La-Key]

were accomplices ... A third... [here Riley] had |

reasons for hostility toward”’’ petitioner. 384 U.S. at

873. Petitioner’s counsel brought the Dennis case: to

the attention of the trial judge in connection with one

request. (R. 233). But the judge, disregarding Dennis,

denied access to any grand jury testimony.

By approving that denial, the Seventh Circuit set -

itself in open conflict with three Circuits that have

held. a defendant’s request at cross-examination suffi-

cient to require disclosure of a witness’ grand jury

testimony. United States v. Youngblood, 379 F.2d 365,

368-70 (2nd Cir. 1967); Schlinsky v. United States,

‘879 F.2d 735, 740 (1st Cir. 1967); Cargill v. United

States, 381 F.2d 849, 852 (10th Cir. 1967). Two other

circuits, however, were allied with the Seventh in de-

clining to adopt that reading of Dennis. National Dairy

Products Corp. v. United States, 384 F.2d 457, 461

(8th Cir. 1967) ; Allen, v. United States, 390 F.2d 476

(D. C. Cir. 1968). |

Subsequent to this case, in co-defendant Amabile’s

appeal, the Seventh Circuit has changed: its position

and aligned itself with the First, Second, and Tenth

Circuits. United States v. Amabile, No. 16314 (7th

Cir. 1968). But the conflict ameng the circuits remains

vivid.

=)

21

Moreover; the Seventh Circuit proniulgated its Ama-

bile reading of Dennis prospectively so that its rule

applies only to trials commencing after the date of the

Amabile judgment on appeal. (App. 57a) Whatever

the right of the Circuits to time their own rulings, they

should not be permitted so to control the rulings of this

Court. In any event, pure prospectivity of the sort —

imposed here is particularly inappropriate since the

use of grand jury testimony in cross-examination af-

fects ‘‘the very integrity of the fact-finding process’’,

Linkletter v. Walker, 381 U.S. 618, 639 (1965) ; Johnson

v. New Jersey, 384 U.S. 719, 728 (1966)—the chief

criterion the Court has used in rejecting. requests for

_ prospective application: Gideon Vv. Wainwright, 372

— U.S. 335 (1963); Jackson v. Denno, 378 U.S. 368

(1964). And in this case, the Dennis holding was

presented to the trial judge as the law at the time of

trial. (R. 233). Under these circumstances, the Link-

letter form of prospective application is the very. least

that should be required. See 381 U.S. at 622 and +

Note 5.

Even if. the Court wishes to let thie eircuit conflict

ripen further, however, the presence’ of the disclosure

question in this case should be regarded as an added

reason for the grant of certiorari.” Although Dennis

does not require a showing of prejudice, an illustration

-of the damage done should be of interest to the Court

in its consideration of the first question. presented.

The novel doctrine of conspiracy law questioned therein

enabled the prosecution to fasten responsibility upon

the petitioner for threats of violence made by others.

18 Even if petitioner is regarded as having moved only for

DiVito’s testimony, the question is squarely presented on this

record. See Note 18, supra.

22°

The transcript of Riley’s grand jury testimony, made

available at the later Amabile trial, reveals that Riley

made no mention of the threats of violence alleged to

have occured prior to 1964.® (App. 68a-10la). Yet he

testified to these threats at trial to support the reason-

ableness of his fear. The transcripts also show that

Amabile referred to himself as ‘‘the man’’ in a meeting |

with Riley concerning work on another project. (App.

8la) Hence, if petitioner had been granted access to

this transcript in cross-examining Riley, he could

have weakened Riley’s credibility in general, attacked

the reasoriableness of his alleged fear, and controverted

‘ Riley’s statement that he knew petitioner as ‘“‘the man’’.- ~

Riley’s grand jury testimony was, therefore relevant to

the critical issue—the threats and petitioner’s connec-

tion with them. Accordingly, the denial of petitioner’s

disclosure motion deprived him of a significant feans

for testing whatever underpinnings there were for

‘the novel conspiracy theory. that alone supported his

conviction.

3. CROSS-EXAMINATION AS:TO RESIDENCE

In the following setting, petitioner’s. counsel was

denied the opportunity to cross-examine Riley, a key

government witness, as to his residence at the time of

trial: (R. 723)

Q: Where do you live now, Mr. Riley?

[Government]: I will object, your Honor and.

I ask to be heard out of the presence of the jury.

The Court: Without a hearing, I will sustain

the. objection.

.

2° The transcript of Riley’s grand jury testimony was. disclosed

in United States v. Amabile, #67 CR 86, and it is reproduced in

the Appendix. It was also inchded in petitioner’s appendix to

_ his petition for rehearing in the Court of Appeals.

23

As this Court held in Smith v. Illinois, 390 U.S. 129

(1968), such a- denial deprived the petitioner of his

right under the Sixth Amendment to confront the wit-

nesses against him. Smith reaffirmed the Court’s hold-

ing in Alford v. United States, 282 U.S. 687 (1930),

requiring reversal of a federal conviction ‘because the

trial judge had sustained objections to questions by .

the defense seeking to elicit the.‘place of residence’ of

a prosecution witness ...”’ 390 U.S. at 132.

Petitioner relied upon the Alford case on appeal

and presented the intervening Smith case to the Court

of Appeals on rehearing.** The government argued

that: the trial court had sought to protect the witness

from further threats or violence. This argument was -

without support in-the record ‘since the trial court

had refused to hold a hearing and, indeed, violence was

attributed to the petitioner only by ‘virtue of the un-.

warranted conspiracy theory challenged in the first

question presented herein. Moreover, only Justices

White and Marshall of. this Court endorsed an ex-.

ception to this Court’s holding in their Smith con-

currence. 390 U.S. at 133-34. And even these Justices

would have required a hearing at trial so that. the

‘‘judge can then ascertain the interest of the defendant

in the answer and exercise an informed discretion in

making his ruling.”” Jd. at 134. Since the defense

was not heard on the matter at trial, it can hardly

be contended that the trial judge properly assessed .

whatever competing factors he would have to weigh

even if the Smith concurrence were the law.

21 Since Alford was law at trial and only reaffirmed in Smith,

no question of mee application of Smith is presented | in

this case.

RAMEE ONE RAO AAEM re AP Wa tens BO A 2 * . . . ere

2

Since the majority opinion in Smith does not suggest

that it is ever permissible to deny a defendant knowl-

edge of a government. witness’ current residence, a

summary reversal of the judgment in this case is ap-

propriate. If, however, the Conrt intended a more —

limited rule, oral argument would be appropriate to

; air the issue.” ~

> * ELECTRONIC EAVESDROPPING

Prior to trial, the petitioner moved for. a hearing to: :

determine the existence and extent of electronic eaves-

dropping. : “The motion was denied and throughout the

case the government avoided a hearing by relying upon

its unilateral review policy, condemned by this Court

in Kolod v. United States, 390 U.S. 136 (1968).

After Kolod, petitioner filed a motion to remand to

the District Court for ‘‘an adversary proceeding’’ com-'

_ porting with this Court’s requirement. In response,

the government finally admitted. that it had violated

petitioner’s privacy. It submitted to the Court of

Appeals’a sealed exhibit containing the ‘‘transcript of

certain overheard conversations involving defendant

Battaglia’. (App. 44a). The Court of Appeals. de-

nied the motion to remand on the ground that it had

conducted an in camera ex parte inspection of the

submitted materials and had found them irrelevant.

22Tf a rule of ‘‘special cireumstances’’ was intended, the Court °

should note that, just-as in Alford and Smith, the defense wad

_ otherwise prevented from fully. exploring Riley’s relationship to

thé government, including the possibility of reward for his testi-

mony. (R. 617-18). See also United States v. Amabile (App. 47a).

Cf. concealment of the witness’ real name in Smith, 390 U.S. at

130, and the possibility of ny reward in Alford, 282 U.S.

a 693.

me LA ke Ce ee take bene ae ee eee ee, Dee LAER FFE R EL OE es ee

oF

* This procedure flatly violates this Court’s directions

in’‘Kolod.. Indeed, on motion to amend the Kolod order,

the government itself has argued that the trial judge,

intimately familiar :with the proceedings, should be - °

given the initial opportunity to determine the relevancy _

of the illegally obtainéd material. Memorandum for

the United States, filed Apfil, 1968, in No. 133 O.T.

- 1967. Moreover, a trial-court adversary hearing would

present an opportunity: to determine whether the gov-

ernment’s presentation of the ince complete.

Given the record of government reluctance if this case,

‘petitioner should not be denied that opportunity.

Petitioner joins in opposition to the government's S

motion to amend the Kolod order. But even if the ;

Court should grant the motion, the judgment in this ;

ease should be vacated and.the cause remanded to

the District Court. for an appropriate hearing with

the right preserved to seek further appellate review.

CONCLUSION

For the foregoing reasons; petitioner respectfully

submits that the petition for a writ-of certiorari should ©

be granted. i ; .

Y -_ KpwarD BENNETT WILLIAMS

HAROLD UNGAR

. ~ 1000 Hilt Building

Washington, D. C. 20006 ©

Counsel for Petitioner

. Of Counsel:

Maurice WALSH

29 South La Salle Street

Chicago, Illinois :

June 7, 1968.

-

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