Petition — Vespe v. United States
Supreme Court brief1976
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Supreme Court of the United States
OcToBER TERM, 1975
No 40-559
Basit VEsPE, Petitioner,
vV.
UnITeD StaTEs OF AMERICA, Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Brian P. GETTINGS,
JERRIS LEONARD and
JOANNE F.. ALPER,
LEONARD, COHEN & GETTINGS
1747 Pennsylvania Ave., N.W.
Washington, D.C. 20006
WiLuiaAM H. UFFELMAN
Biccs AND BaTTAGLIA
1026 Farmers Bank Building
Wilmington, Delaware 19899
Ovip C. LEwIs
2320 Loyola Road
University Heights, Ohio 44118
Attorneys for Petitioner
Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.
TABLE OF CONTENTS
Page
SD SUE cccsccnccdvcedcnncussebnseneseesasn 1
PEEL. Sicccdecdundvicccesdacnddtedscavoneude 2
SS ks dvauscuneadeantnestasene 2
Statutory Provisions Involved ...............ee000. 3
Gr Ck IEE pice cveyavecdcuncdeueeedouss 5
Reasons for Granting the Writ .................008- 10
I. Tue Decision Betow Raises SIGNIFICANT AND
- Recurrinc ProsptemMs CoNnceRNING CONSPIRACY
PRrosEcuTIONS IN FEDERAL Courts AND THE USE
as Evipence THEREIN OF STATEMENTS OF Co-
Consprrators WHo Are UNAVAILABLE FOR CROSS
Ee eeaenaeenenss cukewe 10
A. The Foundation for the Admission of the
Statements of the Alleged Co-Conspirator
I i a 13
B. The Court’s Instructions on How the Jury
Should Consider the Statements of the Al-
leged Co-Conspirator Were Contradictory,
Confusing and Inappropriate to the Facts of
Se WEEE -cndénennasecaundtyeesauseesuntes 17
C. The Use of the Statements of the Alleged
Co-Conspirator Which Were ‘‘Crucial and
Devastating’’ Evidence Amounted to an Ef-
fective Denial of the Defendant’s Right to
Confrontation Because the Alleged Declar-
ant Was Deceased and Unavailable as a Wit- -
OD cncccacnceudankisnscecdbébauectectas
Il. Tue Decision Betow Ratses a SIGNIFICANT AND
Recurrinc ProspLemM CONCERNING A MEANINGFUL
IMPLEMENTATION OF A DEFENDANT’S F'UNDAMEN-
TAL Ricut To Be Convictep Onty Upon Proor
BEYOND A REASONABLE DousBT ................- 27
III. Tue Farure or tHe Traut Court To Instruct
THE JuRY CORRECTLY ON THE EssENTIAL ELE-
MENTS OF THE OFFENSE CHARGED CONSTITUTES
Puiarn Error Requrrinc REveERSAL ............ 32
IN oO os Sead Een daacerie 37
li
TABLE OF AUTHORITIES
Page
CasEs:
Brookhart v. Janis, 384 U.S. 1 (1966) .............. 22
Bruton v. United States, 391 U.S. 123 (1968) ........ 22
Chapman v. California, 286 U.S. 18 (1967) ......... 27
Cole v. Arkansas, 333 U.S. 196 (1948) .............. 33
DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) 24
Douglas v. Alabama, 380 U.S. 415 (1965) ........... 22
Dutton v. Evans, 400 U.S. 74 (1970) ................ 25
Glasser v. United States, 315 U.S. 60 (1942) ........ 10
Grunewald v. United States, 353 U.S. 391 (1957) .... 10
In Re Ruffalo, 390 U.S. 544 (1968) ................. 33
In re Winship, 397 U.S. 358 (1970) ................ 29
Ivan v. City of New York, 407 U.S. 263 (1972) ...... 30
Krulewitch v. United States, 336 U.S. 440 (1949) ...10, 13
Lego v. Twomey, 404 U.S. 477 (1972) ............... 30
Mullaney v. Wilbur, 95 St Ct. 1881 (1975) ........... 31
Parker v. Gladden, 385 U.S. 363 (1966) ............. 27
Pointer v. Texas, 389 U.S. 400 (1965) .............. 22
Roberts v. Russell, 382 -.S. 293 (1968) .............. 22
Screws v. United States, 325 U.S. 91 (1945) ........ 28, 32
Smith v. O’Grady, 312 U.S. 329 (1941) .............. 33
United States v. Scheles, 452 F.2d 892 (7th Cir. 1965) 24
United States v. Falcone, 311 U.S, 205 (1940) ........ 11
United States v. Menichino, 497 F. 2d 935 (5th Cir.
PE nasctesdedietundntheusnsdeonlbeuaneeedes 26
United States v. Nixon, 418 U.S. 683 (1974) ......... 14
STATUTES:
FE rr ee me 3
18 U.S.C. § 1952(a), (b), (1970) ................... 3
Title 11, Delaware Code, § 841 (1975) ............. 28, 34
Title 11, Delaware Code, § 846 (1975) .......... 28, 33-34
Title 11, Delaware Code, § 847 (1975) .............. 34
MISCELLANEOUS:
5 Wigmore, Evidence (3d ed. 1940) ................ 23
le te
Supreme Court of the United States
OctToBER TERM, 1975
No.
Basiz VESPE, Petitioner,
v.
Unitrep States oF AMERICA, Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The petitioner, Basil Vespe, respectfully prays that
a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Third Circuit entered in this proceeding on July 17,
1975.
OPINIONS BELOW
Petitioner was convicted in Criminal Action No. 74-
71 in the District Court of the United States, Dela-
ware District, before the Honorable Judge James L.
Latchum. The District Court wrote two opinions:
United States v. Vespe, 389 F. Supp. 1359 (D. Del.
1975) and United States v. Shaffer, 383 F. Supp. 339
(D. Del. 1975), which appear in the Appendix hereto.
Appeal was taken to the United States Court of
Appeals for the Third Circuit in Case No. 74-1213
2
and the judgment of conviction was affirmed in an
opinion and Order of the Court on July 17, 1975,
which appears in the Appendix hereto. A Petition for
Rehearing was denied in that Court on September
11, 1975.
JURISDICTION
The Order of the Court of Appeals for the Third
Circuit affirming petitioner’s conviction was entered
on July 17, 1975. The Order of that Court denying
the Petition for Rehearing was entered on September
11, 1975, Jurisdiction is conferred upon this Court
under 28 U.S.C. See. 1254(1).
QUESTIONS PRESENTED
1, Whether admission of the statements of an
alleged co-conspirator who was deceased and unavail-
able for cross-examination during petitioner’s con-
spiracy prosecution was without proper foundation,
led to contradictory, confusing and inappropriate jury
instructions, and deprived him of his right to con-
frontation.
2. Whether petitioner’s right to the standard of
proof beyond a reasonable doubt was denied him by
the failure of the trial judge to instruct the jury on
each essential e..ment of the crime charged and by
the instruction instead that he had the burden of
proving that the subject of an extortion conspiracy, a
sum of money, was his property and not that of the
alleged victim.
3. Whether the failure of the trial judge to cor-
rectly instruct the jury on the elements of the offense
charged was plain error.
a
LE ——_——————
3
STATUTORY PROVISIONS INVOLVED
18 U.S.C. § 371 (1970) :
‘‘If two or more persons conspire either to com-
mit any offense against the United States, or to
defraud the United States, or any agency thereof
in any manner or for any purpose, and one or
more of such persons do any act to effect the ob-
ject of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than
five years, or both.
“Tf, however, the offense, the commission of
which is the object of the conspiracy, is a misde-
meanor only, the punishment for such conspiracy
shall not exceed the maximum punishment pro-
vided for such misdemeanor.”’
18 U.S.C. § 1952 (a), (b), (1970):
‘‘(a) Whoever travels in interstate or foreign
commerce or uses any facility in interstate or for-
eign commerce, including the mail, with intent
to —
(1) distribute the proceeds of any unlawful
activity ; or
(2) commit any crime of violence to further
any unlawful activity; or
(3) otherwise promote, manage, establish,
earry on, or facilitate the promotion, manage-
ment, establishment, or carrying on, of any un-
lawful activity, and thereafter performs or at-
tempts to perform any of the acts specified in
subparagraphs (1), (2), and (3), shall be fined
not more than $10,000 or imprisoned for not more
than five years, or both.
(b) As used in this section ‘unlawful activity’
means (1) any business enterprise involving
gambling, liquor on which the Federal excise tax
4
has not been paid, narcotics, or prostitution of-
fense in violation of the laws of the State in
which they are committed or of the United States,
or (2) extortion, bribery, or arson in violation of
the laws of the State in which committed or of
the United States.’’
Title 11, Delaware Code, § 841 (1975) :
‘**A person is guilty of theft when he takes, exer- .
cises control over or obtains property of another
person intending to deprive him of it or appro-
priate it. Theft includes the acts described in $4
842 through 846.
‘¢ “A person is guilty of theft if he, in any capacity
legally receives, takes, exercises control over, or
obtains property of another which is the subject
of theft, and fraudulently converts same to his
own use.
Title 11, Delaware Code, § 846 (1975) :
‘‘A person commits extortion when, with the in-
tent prescribed in § 846 of this Criminal Code, he
compels or induces another person to deliver
property to himself or to a third person by means
of instilling in him a fear that, if the property is
not so delivered, the defendant or another will:
(1) Cause physical injury to anyone; or
(2) Cause damage to property; or
(3) Engage in other conduct constituting a
erime; or
(4) Accuse anyone of a crime or cause criminal
charges to be instituted against him; or
(5) Expose a secret or publicize an asserted
fact, whether true or false, tending to subject
anyone to hatred, contempt, or ridicule; or
4)
(6) Falsely testify to provide information or
withhold testimony or information with respect
to another’s legal claim or defense; or
(7) Use or abuse his position as a public ser-
vant by performing some act within or related
to his official duties, or by failing or refusing
to perform an official duty, in such manner as to
affect some person adversely; or
(8) Perform any other act which is caleulated
to harm another person materially with respect to
his health, safety, business, calling, career, finan-
cia: condition, reputation, or personal relation-
ships.”’
Title 11, Delaware Code, § 847 (1975) :
‘*(a) In any prosecution for theft or extortion it is
an affirmative defense that the property was ap-
propriated by the actor under a claim of right,
made in good faith to do substantially what he
did in the manner in which it was done.
(b) In any prosecution for extortion where the
facts are as described in § 846(4) of this Criminal
Code, it is an affirmative defense that the accused
believed the threatened criminal charge to be true
and that his sole purpose was to compel or induce
the victim to take reasonable action to make good
the wrong which was the subject of the threat-
ened charge.”’
STATEMENT OF THE CASE
The evidence in the trial court showed that Basil
Vespe, the petitioner, was, during all times material
to the indictment, the chief executive officer of a con-
erete contracting company in Bellmawr, New Jersey.
(Tr. 37-38). In 1970, his company was hired as a sub-
contractor on three large contracts where corporations
controlled by one Joseph Remedio of Wilmington,
6
Delaware, were the general contractors. (Tr. 106,
109). Out of this business relationship there arose a
dispute between Vespe and Remedio about money due
Vespe. (Tr. 112, 184, 220). He contended that even
though Remedio held back on a portion of the funds
due him on the first contract, he was induced to con-
tinue doing business with Remedio by Remedio’s hold-
ing out to him the later and larger contracts into
which they entered. (Tr. 337, 351, 360).
As a result of the original holding back and defaults
on the subsequent contracts, petitioner contended that
Remedio’s corporations owed him approximately
$87,000. (Tr. 381). At all times, Remedio denied the
existence of this debt and for more than two years,
until July, 1974, refused to even discuss the matter
with Vespe. (Tr. 375-379). When all attempts at nego-
tiation had failed, a civil action was instituted by
Vespe in which he sought to obtain the full amount
of monies due him from Remedio. ‘Tr. 341). There-
after, in July, 1974, while the civil suit was pending,
he enlisted the assistance of one Albert Shaffer to
attempt to collect the debt due him, or which he
thought was due him, irrespective of the progress, or
lack thereof, of the civil suit through the Courts. (Tr.
488)
The subject of the indictment was the method
Shaffer utilized in attempting to collect the disputed
debt from Remedio, which the government contended,
amounted to extortion in violation of Delaware law.
The events took place between approximately July 3,
1974, and July 22, 1974. Shaffer and Vespe were in-
dicted by a Federal Grand Jury in the District of
Delaware on July 25, 1974. Shaffer was charged in
four counts, three of which alleged substantive viola-
7
tions of 18 U.S.C. 1952 based upon travel in interstate
commerce and the use of interstate telephone facilities
in furtherance of extortion. The fourth count alleged
that Shaffer and Vespe conspired to violate Section
1952 with the same basis, interstate travel and tele-
phone calls to further extortion. Vespe was not
charged with any substantive crime. In September,
1974, before trial, Shaffer died and the substantive
charges against him were dismissed. Vespe was tried
alone on the conspiracy charge and a major part of
the evidence against him consisted of Remedio’s testi-
mony concerning statements made to him by Shaffer,
the deceased alleged co-conspirator who was unavail-
able as a witness.
Over objection, Remedio was permitted to testify
that on July 3 or 4, and again on July 10, 1974, he
received telephone calls from Shaffer in which he was
advised, in substance, that he should meet with Shaf-
fer about the Vespe debt or he would meet with bodily
harm. (Tr. 116, 117, 122). They met for the first time
in Remedio’s office on July 10. Also present at the
meeting were two police officers. According to Reme-
dio, Shaffer described himself both as an employee
of Vespe and as a creditor of Vespe. While there was
considerable discussion of the disputed debt, all par-
ties who testified agreed that the meeting was a nor-
mal and uneventful business meeting, even though
Remedio never disclosed that the men present were
police officers until it was over. (Tr. 69, 71, 75, 125-
*
129). "Ss
Remedio next testified that within forty minutes
thereafter, he received a phone call from Shaffer
which contained threatening and berating statements
and specific demands for money. (Tr. 129, 133). At
8
this point there was no evidence that Vespe had any
knowledge of what Shaffer was saying or doing ex-
cept that he was purportedly attempting to collect
Vespe’s debt. Just as Remedio was concluding the con-
versation with Shaffer with a promise to start pay-
ing Vespe by check that week, Remedio received a
telephone call from one of the police officers who had
checked on Shaffer and determined that he had a bad
reputation. (Tr. 133-134). Thereafter, a tap was
placed on Remedio’s telephone with his knowledge
and consent, and he was instructed to contact Vespe
and make further contact with Shaffer. (Tr. 136).
In response to a call from Remedio, (Tr. 136)
Vespe called him on July 12 and that conversation
was tape-recorded and was played for the jury during
the trial. (Tr. 158). Remedio advised Vespe that he
had been tireatened by Shaffer. While Vespe ac-
knowledged that Shaffer was working for him and
that he had a bad reputation, he denied knowledge of
any threats and further denied that he authorized
any threats. He specifically disclaimed any intent to
resort to violence and repeatedly urged that he and
Remedio meet personally to discuss their differences.
Vespe agreed to take Shaffer out of the picture pend-
ing the meeting they agreed upon for the following
week.
Shortly after this conversation ended, Remedio re-
ceived another call from Shaffer. (Tr. 159). Shaffer
repeated his prior demands for what he now called
‘*his’? money, berated both Remedio and Vespe, and
told Remedio, in essence, that he, Shaffer, was in con-
trol of the debt collection and not Vespe. Remedio
agreed to send Vespe a check for one thousand dollars
dollars immediately. On July 15, Vespe called Reme-
9
dio and told him that he had received his check but
that he was not going to deposit it. Instead he pressed
again for a personal meeting which was agreed upon
for two days later at Remedio’s office. Most of this
conversation was devoted to each of the parties dis-
cussing the relative merits of their positions as to the
disputed debt. Both of these calls were tape-recorded
and were played for the jury. (Tr. 162, 166).
The meeting occurred, as scheduled, on July 17 in
Remedio’s office. In addition to Vespe and Joseph
Remedio, his brother Daniel was present throughout.
This conversation was also tape-recorded in its en-
tirely and played fer the jury. (Tr. 170). It was de-
voted exclusively, again, to each of the parties dis-
cussing the relative merits of their positions on the
disputed debt, at times in minute and tedious detail.
Vespe several times offered to compromise his de-
mands but more than once counseled Remedio that he
should pay nothing if he did not honestly believe he
owed it. The meeting ended with nothing resolved ex-
cept that they would resolve the matter in Court.
Vespe agreed to inform Shaffer of this and to remove
him from further attempts to collect the debt.
The last of the tape-recorded conversations played
for the jury (Tr. 173) occurred on July 22, 1974, prin-
cipally between Shaffer and Remedio, although Vespe
was on the line briefly to listen to Shaffer inform Re-
medio that Vespe was no longer concerned about the
debt, which was now his and his alone to collect.
Shaffer attempted, during this conversation, to get
Remedio to pay additional monies, but no threats were
made at any time against Remedio. Nothing further
of any significance occurred in the matter, and three
days later the indictment in the case was returned.
10
REASONS FOR GRANTING THE WRIT
I. The Decision Below Raises Significant And Recurring Prob-
lems Concerning Conspiracy Prosecutions In Federal
Courts And The Use As Evidence Therein Of Statements
Of Co-conspirators Who Are Unavailable For Cross Exami-
nation. In The Trial Court Here The Foundation For
The Admissibility Of These Statements Was Insufficient,
The Court's Instructions On How The J ury Should Con-
sider Them Were Contradictory, Confusing And Inappro-
priate To The Facts Of The Case, And In Any Event, The
Use Of Such Statements, Which Were “Crucial And ese
tating” Evidence Amounted To An Effective Denial Of
The Defendant's Right To Confrontation Because The
Alleged Declarant Was Deceased
ne: And Unavailable As
It can scarcely be gainsaid that conspiracy prosecu-
tions have been the target cf considerable criticism
in recent years. This Court has always been alert to
and has ‘‘repeatedly warned that [it] will view with
disfavor attempts to broaden the already pervasive
and wide-sweeping nets of conspiracy prosecutions.’
Grunewald v. United States, 353 U.S. 391. 404 (1975)
It has observed that in conspiracy cases “the liberal
rules of evidence and the wide latitude accorded the
prosecution may, and sometimes do, operate unfairl
against an individual defendant... .” ame ¢
United States, 315 U.S. 60, 76 (1942). Mr. Jus.
tice J ackson, in his concurring opinion in K neath h
v. United States, 336 U.S. 440, 455-459 (1949), d li
ered the classic dissertation on the “‘elastic. s ra a
and pervasive offense’ of conspiracy. Id at aan
Therein he observed “the growing habit to indict for
conspiracy in lieu of prosecuting for the substanti :
offense itself,”’ and suggested that “loose practic va
to this offense constitutes a serious threat to rotten
in our administration of justice.”’ Id. at 445-446, It is
RE ————_—__——_
11
petitioner’s contention that several fundamental er-
rors were committed during his trial below and that
they resulted principally from the choice by the gov-
ernment to prosecute him ‘‘for conspiracy in lieu of
prosecuting for the substantive offense itself.’’ Thus,
we suggest that ‘‘important considerations of policy
behind such warnings,’’ Gruenwald Vv. United States,
953 U.S. 391, 404 (1957), compel review of this case
by the Court.
As heretofore noted, the indictment returned by the
Grand Jury in this case originally contained four
counts. Petitioner and Shaffer were charged in one
count with conspiracy, in violation of 18 U.S.C. 37],
to violate the Travel Act, 18 U.S.C. 1952, by travel
and the use of facilities in interstate commerce to
commit extortion in violation of Section 846, Title 11,
of the Delaware Code. Shaffer alone was named in
the other three counts which charged substantive vio-
lations of 18 U.S.C. 1952. Shaffer died prior to trial,
and the substantive counts were dismissed. Petitioner
was tried and convicted on the single conspiracy
count. The only acts or declarations which could have
possibly formed the basis for a charge of extortion,
in that they instilled in the alleged victim, Remedio,
a fear that he would be caused physical injury, were
done or said by the deceased Shaffer. It is settled that
the gist of the offense of conspiracy is the agreement
among the conspirators to commit the offense, and not
the offense itself. United States v. Falcone, 311 U.S.
205, 210 (1940). Likewise, the gravamen of a Travel
Act violation lies in the interstate travel or use of the
interstate facility, not in the underlying State offense.
12
It is urged that from the outset of the prosecution,
petitioner was faced with charges that were needlessly
confusing and which hopelessly obsecured the principal
thrust of the federal statutes involved. On its face
Section 1952 piggybacks upon State law. Straight-
forward violations of State law become violations of
Federal law where there is evidence of the requisite
nexus with interstate commerce. It is settled that prose-
cution of substantive violations of this sort are proper
even though an additional and unnecessary element of
the crime charged is introducing into the case. What-
ever confusion might result in ascertaining the prin-
cipal thrust of the charge is usually minor. Here
though the government compounded the problem and,
we assert, for no good reason. Petitioner was charged
with no substantive violation of Section 1952, He was
charged only with conspiring to use facilities in inter-
state commerce to commit extortion. The vice of this
lies not so much in the very real likelihood that he was
not convicted of what he was charged with but that, in
all probability, he could not have been convicted of any-
thing else; that he was convicted of the ‘elastic
sprawling and pervasive offense’’ of conspiracy only
because of ‘‘the liberal rules of evidence and the wide
latitude accorded the prosecution’’ in conspiracy
cases, The errors in the trial court complained of here
flow from the government’s misuse of the conspiracy
statute to the petitioner’s prejudice and detriment.
It should be noted that four of the eight overt acts
alleged in support of the conspiracy charged the peti-
tioner personally with travel in interstate commerce
and personally with the use of interstate telephone
facilities. Quite obviously, and quite rightly, we think,
13
considering the evidence, the government had no con-
fidence that it could prove petitioner guilty beyond a
reasonable doubt of any substantive violations of Sec-
tion 1952. More to the point is the fact that the govern-
ment did not undertake to prove even that pe‘itioner
‘‘eounseled,”’? ‘‘commanded,”’ ‘‘induced,”’ ‘*procured’”’
or ‘‘ wilfully caused,’’ ef. 18 U.S.C. 2, Shaffer to act in
the substantive counts which were originally charged
in the indictment. Instead, it chose its last resort, the
crime of conspiracy which, again in Justice Jackson’s
words ‘“‘is so vague that it almost defies definition.’’
Krulewitch v. United States, 336 U.S. 440, 446 (1949).
A. Tue FounpDATION FOR THE ADMISSION OF THE
STATEMENTS OF THE ALLEGED Co-CoNSsPIRATOR WAS
INSUFFICIENT.
In Krulewitch, the specific prejudice and detriment
to the petitioner in the present case was accurately
presaged by Justice Jackson when he observed as fol-
lows:
‘‘When the trial starts, the accused feels the full
impact of the conspiracy strategy. Strictly, the
prosecution should first establish prima facie the
conspiracy and identify the conspirators, after
which evidence of acts and declarations of each in
the course of its execution are admissible against
all. But the order of proof of so sprawling a
charge is difficult for a judge to control. As a
practical matter, the accused often is confronted
with a hodgepodge of acts and statements by
others which he may never have authorized or
intended or even known about, but which help to
persuade the jury of existence of the conspiracy
itself. In other words, a conspiracy often 1s
proved by evidence that is admissible only upon
assumption that conspiracy existed. The naive
assumption that prejudicial effects can be over-
14
come by instructions to the jury, cf. Blumenthal
v. United States, 332 U.S. 535, 559, 68 S.Ct. 248,
257, all practicing lawyers know to be unmiti-
gated fiction.”’ 360 U.S. 440, 453 (emphasis
added).
Precisely what happened in this case was that the
conspiracy was proven, if at all, by evidence that was
admissible only upon the assumption that a conspi-
racy existed to begin with.
The textbook definition of a criminal conspiracy
is that it is a combination of two or more persons to
accomplish by concerted action some unlawful pur-
pose or to accomplish some lawful purpose by unlaw-
ful means. As noted previously the gist of the offense
is the agreement, but the sine qua non of the erimi-
nality is either the unlawful purpose or the unlawful
means. Without one or the other, conspiracy, in the
perhaps facetious but certainly the noncriminal sense,
may be proven but nothing more. As Justice Jackson
pointed out, supra., the prosecution must first estab-
lish prima facie the conspiracy and identify the con-
spirators, after which evidence of acts and declara-
tions of each in the course of its execution are ad-
missible against all. The rule has been enunciated
more precisely where co-conspirators’ declarations are
involved, to the effect that the declarations of one
alleged co-conspirator are admissible against the other
only when there is proof aliunde that the latter is
connected with the conspiracy, Glasser vy. United
States, 315 U.S. 60, 74 (1942), and that there is ‘‘sub-
stantial, independent evidence of the conspiracy itself,
at least enough to take the case to the jury.’’ United
States v. Nixon, 418 U.S. 683, 701 n.14 (1974). As we
perceive it, ‘“‘prima facie,’ ‘substantial,’ and
15
‘enough to take the case to the jury’? mean much the
same and, insofar as determining whether a proper
foundation has been shown for the relevancy of the
evidence, ‘‘acts’’ and ‘‘declarations’’ also mean much
the same.
Since the conspiracy charged in this case involved
only two persons, substantial independent proof that
a conspiracy existed necessarily had to equate with
substantial independent proof that petitioner was con-
nected with it, and vice versa. Further, since the pe-
titioner was the only person on trial, all the evidence
the government introduced during the trial was ad-
mitted ‘‘against him’’ and not against any other per-
son. That the trial court failed to make these dis-
tinctions between the facts of this case and those of
a multi-defendant conspiracy is evident from its in-
structions to the jury, discussed infra. But the court
first failed to consider this in assessing whether the
government had met its threshold burden by substan-
tial, independent evidence. In its case-in-chief, the
government relied upon three categories of evidence.
First, there was the undisputed evidence that Remedio
and the petitioner were involved in a controversy over
a sum of money and that the petitioner had authorized
Shaffer to collect from Remedio what the petitioner
claimed was a debt due him. Second, there was evidence
of four conversations, three by telephone and one in
person, between the petitioner and Remedio during
the approximate two-week period of the conspiracy
alleged in the indictment. Third, there was evidence
of six conversations, five by telephone and one in
person, between Shaffer and Remedio, out of the
petitioner’s presence, during the same period. It is
16
the admissibility of these latter conversations that
petitioner has consistently challenged.
In admitting the evidence of Shaffer-Remedio con-
versations, the trial court said:
‘*At the time the Government offered the declara-
tions and statements of Mr. Shaffer through the
testimony of Mr. Remedio and thereafter when
Mr. Shaffer’s statements on tapes which were
recorded on July 12 and 22 were offered as evi-
dence in this case, 1 admitted those statements
subject to a motion to strike unless the Govern-
men proved prima facie through independent evi-
dence the existence of a conspiracy and defend-
ant’s connection therewith.
*“*Now having heard the testimony of the Gov-
ernment’s witnesses and Mr. Vespe’s statements
and conversations with Mr. Remedio contained on
the tapes of July 12, July 15, and July 17 of
1974, the Court is now satisfied, upon viewing such
evidence in total perspective and the reasonable
inferences arising therefrom, that there has been
a prima facie showing and a reasonable likelihood
of an illicit association between Mr. Vespe and
Mr. Shaffer, to the extent that Mr. Shaffer’s
declarations made in defendant’s absence were
properly received in evidence against the defend-
ant, and that those statements will not be stricken
‘from the record.’’ (Tr. 201-202).
We contend the trial court was plainly wrong in this
finding for, unless resort is had to the Shaffer-Remedio
conversations, there was no evidence of any threats to
Remedio, except Remedio’s own self-serving state-
ments to petitioner, no evidence at all that petitioner
had authorized or directed that such threats be made,
and no evidence at all that he had agreed or conspired
so to do.
17
We suggest that any fair reading of the four con-
versations between petitioner and Remedio compels
the drawing of an inference either that Shaffer was
wholly involved in a ‘‘frolic of his own” or that peti-
tioner and he were working at cross purposes rather
than in concert. It should be reiterated that no threats
of any kind were contained in these conversations, and
the government, in arguing the admissibility of the
Shaffer-Remedio conversations, some of which con-
cededly did contain threats, was forced into the posi-
tion of advancing a rather novel, if not unique, evi-
dentiary theory—that petitioner’s claim that he did
not know of such threats was evidence that he did
know, that his disclaimer of approval of violence was
evidence that he did approve of it. In short, the lack
of evidence was evidence itself. The court specifically
found that there was ‘‘a reasonable likelihood of an
illicit association between Mr. Vespe and Mr. Shaffer.’’
Apart from the fact that without considering the
Shaffer-Remedio conversations, it could not have con-
ceivably come to that conclusion, we suggest further
that such a finding falls far short of ‘‘substantial evi-
dence that there was an agreement between them to
use facilities in interstate commerce to extort’’ which
was what the court was required to find at that point.
B. THe Covurt’s Instructions oN How THE JURY
SHOULD CONSIDER THE STATEMENTS OF THE ALLEGED
CO-CONSPIRATOR WERE CONTRADICTORY, CONFUSING
AND INAPPROPRIATE TO THE F'ACTS OF THE CASE.
Following the erroneous admission of Shaffer’s
declarations to Remedio against petitioner, the trial
court further complicated the case with its instructions
to the jury. It first admitted the offending testimony
18
tentatively, with the following cautionary instruction
which was not solicited by the petitioner:
‘‘Now, members of the jury: This is a conspiracy
ease and what has just been testified to is an
alleged statement by a co-conspirator, Shaffer.
You may not take into consideration—I have per-
mitted this evidence to be admitted, subject to
being stricken later if it is not proven by the Gov-
ernment that there was a conspiracy that existed
between Mr. Vespe and Mr. Shaffer. If there was
a conspiracy and that is proven by independent
evidence, aside from any declarations made by
Shaffer, then you may consider that evidence. But
you cannot consider the evidence until the Gov-
ernment has proven that there was actually a con-
spiracy between Shaffer and Vespe, because a
declaration of Shaffer could not be held against
Vespe under the rules of evidence in a court of
law in the United States.
‘*So I have admitted this evidence as to the decla-
rations by Shaffer subject to the Government’s
proof that there was a conspiracy in existence
between Shaffer and Vespe.’’ (Tr. 121-122).
Petitioner had no notice that the court was going to
give such an instruction and once it had been given it
was pointless to object to it. While such an instruction
may be appropriate, if requested by a defendant in a
multi-defendant trial, it clearly served no purpose in
this case. ‘‘[I]f it is not proven by the Government
that there was a conspiracy that existed between Mr.
Vespe and Mr. Shaffer,’’ surely the court would not
merely ‘‘strike the evidence,’”’ it would ‘‘strike the
ease’’ by granting a judgment of acquittal.’
‘That the Court itself clearly misunderstood the requirements
of this case is further evidenced by this statement:
‘*Now I will admit that if independent facts and the infer-
19
In discussing the cautionary instruction, the Court
of Appeals below conceded that ‘‘If the second sen-
tence stood alone, we wouid have to agree that it im-
properly usurped the jury’s function in determining
whether Vespe and Shaffer had conspired.”’ (Slip op.
p. 3). It went on to hold, bowever, that ‘‘the remainder
of the precautionary instruction suggests that the
Government must prove to the jury that a conspiracy
existed between Vespe and Shaffer before they may
consider Shaffer’s hearsay declarations as evidence
against Vespe.’’ (Slip op. p. 3). ‘To the same effect,”’
it said, ‘‘was the court’s final charge:
‘‘In determining whether a conspiracy existed,
the jury should consider the actions and declara-
tions of all of the alleged participants. However,
in determining whether a particular defendant
was a member of the conspiracy, if any, the jury
should consider only his acts and statements. He
cannot be bound by the acts or declarations of
other participants until it is established that a
conspiracy existed, and that he was one of its
members.
+ * +
‘‘Whenever it appears beyond a reasonable doubt
from the evidence in the case that a conspiracy
existed, and that a defendant was one of its mem-
bers, then the statements thereafter knowingly.
made and he acts thereafter knowingly done, by
ences drawn therefrom satisfy the court that there was a
likelihood of an illicit association, those declarations can be
admitted, even though it may later eventuate that the inde-
pendent evidence to be insufficient to justify submitting to
the jury the question of the defendant’s alleged guilty in-
volvement with the declarant.’’ (Tr. 120).
We do not understand how the Court could find the independent
evidence sufficient and then later find it insufficient. Moreover, we
do not understand what an ‘“‘illicit association’’ is.
20
any person likewise found to be a member, may
be considered by the jury as evidence in the case
as to the defendant found to have been a member
even though the statements and acts may have oc-
curred in th? absence and without the knowledge
of the defadant, provided such statements and
acts were knowingly made and done during the
continuance of such conspiracy, and in further-
ance of some object or purpose of the conspiracy.
‘Otherwise, any admission or incriminatory state-
ment made or act done outside of court, by one
person, may not be considered as evidence against
any person, who was not present and who did not
hear the statement made, or see the act done.
‘Therefore, statements of any conspirator, which
are not in furtherance of the conspiracy, or made
before its existence, or after its termination, may
be considered as evidence only against the person
who made them.”’ (Tr. pp. 3, 4).
We suggest that instead of curing the vice of the
second sentence of the cautionary instruction, the addi-
tional and final instructions could only have confused
the jury. The Court of Appeals further said:
‘By instructing the jury that they had
beyond a reasonable doubt that _ ia =
nected with a conspiracy before they could con-
sider Shaffer’s declarations against him, the court
in effect required the Government to meet its
burden on the basis of the proof aliunde alone.
If the proof aliunde did not convince the jury of
Vespe s guilt beyond a reasonable doubt, the
court’s charge did not allow them to resolve their
doubts through the use of Shaffer’s declarations.”’
(Slip op. p. 4). .
This not only begs the question, it also misses the en-
tire point of petitioner’s complaint because such a
21
charge, particularly as it concerns a conspiracy in-
volving but two individuals, makes no sense. If it is
not reasonable to assume as much, there is at least
a substantial risk that the jury, in attempting to
plumb the depths of its meaning, would refer back to
the only cautionary instruction it received during the
trial and conclude that because the evidence had not
been stricken, the government had proven its case,
at least in the view of the trial judge.
To advise a jury that ‘‘Whenever it appears be-
yond a reasonable doubt from the evidence in the case
that a conspiracy existed, and that a defendant was
one of its members, then the statements and acts of
others may be considered against that defendant,”’
is to advise a jury that ‘‘whenever it has found the
defendant guilty beyond a reasonable doubt, it may
then consider other evidence against him.’’ There may
be situations in which such an instruction makes sense
but in this case it could not have. The jury below was
charged, in effect, that whenever they concluded be-
yond a reasonable doubt that petitioner and Shaffer
were guilty of conspiracy, the only crime charged,
then, instead of rendering their verdict, they were to
begin considering Shaffer’s acts and declarations. But,
as heretofore noted, the evidence of Shaffer’s acts
and declarations were the only evidence of unlawful
acts and declarations to begin with. No juror of even
average intelligence could have correctly compre-
hended this. Not only was the conspiracy in this case
proven “‘by evidence that is admissible only upon the
assumption that a conspiracy existed,’’ the trial court
specifically instructed the jury to consider the evi-
dence in precisely this manner. The fault lies in the
trial court’s failure to adapt its charge to the jury
22
to the unusual type of conspiracy before it which, it is
urged, constitute plain error. )
This situation exemplifies the pitfalls of imprudent
conspiracy prosecutions and the tendency of trial
judges to instruct juries automatically and by rote.
The instructions given in this case were ‘boiler-
plate,’’ unassailable as well-established principles of
law. That they were contradictory and had no appli-
cation to the facts at hand seems to have been over-
looked by all up to this point. Nevertheless, the error
was more than substantial; it affected the jury’s de-
liberative process in its entirety. Because we ‘are of
the view that the conspiracy charge was error to begin
with, we are not prepared to suggest even that proper
instructions could have been given in this case. Cer-
tainly the error, however caused, falls within the ambit
: Rule 52 of the Federal Rules of Criminal Proce-
ure.
C. THE Use or THE STATEMENTS OF THE ALLEGED Co-
CONSPIRATOR WHICH WERE ‘‘CRUCIAL AND DeEvaAstTa-
TING’’ EvIpENCE AMOUNTED TO AN EFFECTIVE DENIAL
OF THE DEFENDANT’s RIGHT TO CONFRONTATION BE-
CAUSE THE ALLEGED DECLARANT WAS DECEASED AND
UNAVAILABLE AS A WITNEss.
Constitutional guarantees certainly have priority
over evidentiary rules, and this Court has held that
Save in exceptional circumstances, the accused is en-
titled to be confronted by his accusers and to exercise
his right to cross-examination, irrespective of eviden-
tiary rules. Pointer v. Teras, 380 U.S. 400 (1965) ;
Douglas v. Alabama, 380 U.S. 415 (1965) ; Brookhart
v. Janis, 384 U.S. 1 (1966); Bruton v. United States
391 U.S. 123 (1968) ; Roberts v. Russell, 392 US, 293
23
(1968). These decisions recognize that the right-of-
confrontation and the accompanying right of cross-
examination—‘‘the greatest legal engine ever invented
for the discovery of truth’? (5 Wigmore, Evidence
§ 1367 at 28-29 (3d ed. 1940)—are inalienable and
that they are not to be ervded nor emasculated by
indirection or subtlety. A denial of the right-of-con-
frontation is none the less so because it is the result of
evidence admissible under an exceyrion to the hearsay
rule or for any other reason.
We think it unnecessary to determine whether the
evidence of Shaffer’s declarations to Remedio was
‘shearsay”’ in the conventional sense even though both
parties and both courts below have consistently treated
it as such. Plainly, it was this evidence which con-
victed petitioner; without it he could not have been
convicted. Whether ‘‘hearsay’’ or not, petitioner was
convicted out-of-the-mouth of Shaffer, and it is diffi-
cult to conceive of a situation where a defendant’s
inability to call a witness worked more to his detri-
ment. For the most part, Remedio’s testimony as to
what Shaffer said to him was uncorroborated. From
the beginning petitioner was utterly helpless to refute
anything about this testimony while Remedio, on the
other hand, was free to exaggerate, embellish and
‘‘oild the lily’? with no restraint. It is certainly worth
noting that the two conversations that were corro-
borated by tape recordings, those of July 12 and
July 22, 1974, are totally inconsistent with the theory
that petitioner and Shaffer were acting in concert.
On the contrary, they unmistakably tend to establish
that Shaffer was on a ‘‘frolic of his own.’’ Moreover,
the content and tone of the uncorroborated conversa-
tions, containing the only threats to Remedio, as testi-
24
fied to by Remedio, contrast sharply with those that
were tape-recorded.
But whatever the purport of all these conversations,
their admission into evidence against petitioner in this
case denied him a fundamental right. The prejudice
to him is obvious. If Shaffer were a witness in his
own behalf in a joint trial, he might have denied out-
right, substantially contravened, or modified the state-
ments attributed to him by Remedio. Or he might
have admitted much concerning the statements but
denied that he was speaking at petitioner’s direction.
It is remotely possible, of course, that he might have
admitted the content of the statements attributed to
him and placed the responsibility therefor with the
petitioner. But since that is essentially what peti-
tioner was convicted of, he could hardly have been in
a worse position with this eventuality and would have
had, at the very least, the opportunity to test the tes-
timony by cross-examination. Another possibility is
that Shaffer may have declined to be a witness in his
own behalf in a joint trial which, in all likelihood,
would have entitled petitioner to a severance. Cf.
DeLuna vy. United States, 308 F.2d 140 (5th Cir.,
1962); United States v. Echeles, 452 F.2d 892 (7th
Cir., 1965). Under those circumstances, the same pos-
sibilities set forth above would exist as to Shaffer’s
testimony but with one addition: he would invoke
his privilege against self-incrimination. In that event,
petitioner, who did testify on his own behalf, would
have had the right to comment on Shaffer’s failure
to testify. DeLuna v. United States, supra. Whatever
the outcome then, Shaffer’s unavailability as a witness
substantially prejudiced the petitioner and it was fun-
damental error to have admitted his statements.
25
This position is supported by this Court’s decision
in Dutton v. Evans, 400 U.S. 74 (1970). The defend-
ant there was convicted of murder. Among some
twenty witnesses called by the prosecution, including
an accomplice eyewitness, was a prison inmate, who
testified that his cellmate, Williams, also charged with
the same murder, had stated by implication that
Evans was involved in the crime. The cellmate-de-
elarant did not testify and this Court sustained the
admission of the hearsay testimony under a broader
co-conspirator’s declaration exception than that which
prevails in Federal Courts. This Court observed, how-
ever, that ‘‘of course, Evans had the right to sub-
poena witnesses, including Williams whose testimony
might show that the statement had not been made.
400 U.S. at 88, n.19 (1970). Moreover the plurality
opinion emphasized that under the circumstances of
that case there were several indicia of the reliability
of declarant, which are not present in this case, and
that the statement did not ‘‘involve evidence in any
sense ‘crucial’ or ‘devastating,’ ’’ 400 U.S. at 87, as
did other cases discussed by the Court and cited pre-
viously herein where the right of confrontation had
been held denied. Certainly Remedio’s uncorroborated
testimony as to what Shaffer said to him before July
12, 1974, was ‘‘ecrucial’’ to the prosecution and ‘‘de-
vastating”’ to the defense. These were the only threats
of bodily harm to Remedio, and without evidence of
them, an essential element of the crime of extortion as
defined by the State of Delaware, is utterly without
proof. Likewise, without this evidence, there is no evi-
dence of either an unlawful object or unlawful means
in petitioner’s enlisting Shaffer to collect the debt. In
fact, Shaffer’s utterances were the crime itself.
26
To a similar effect is the Fifth Circuit's holding in
United States v. Menichino, 497 F.2d 935 (Sth Cir.,
1974). There the defendant was convicted of conspir-
acy where he had challenged the admissibility of a
co-conspirator’s statement without being able to con-
front him. In affirming the conviction, the Court held
that there was ample other evidence to establish the
existence of a conspiracy and that the admitted testi-
mony was ueither crucial nor devastating. The Court
said, at 943:
‘‘Menichino also argues, however, that even if
Caine’s statement to Brown was properly re-
ceived under an exception to the hearsay rule,
admitting it was error since the confrontation val-
ues implicit in the Sixth Amendment were vio-
lated by its admission. California vy. Green, 1970,
399 U.S. 149, 155, 90 S. Ct. 1930, 1933-1934, 26
L. Ed. 2d 489, 495 made it plain that although the
confrontation clause protections and the hearsay
rule overlap, they are not coextensive. Thus even
statements properly admitted under hearsay rules
may be examined by the court to assure that ‘the
trier of fact [has] a satisfactory basis for evalu-
ating the truth of the prior statement.’ Dutton v.
Evans, 1970, 400 U.S. 74, 89, 91 S. Ct. 210, 220,
27 L. Ed. 2d 213, 227, quoting California v. Green,
399 U.S. at 161, 90 S. Ct. at 1936, 26 L. Ed. at
498. Read together, Green and Dutton instruct
that a case-by-case analysis is necessary to deter-
mine whether, under the circumstances, the un-
availability of the declarant for cross-examina-
tion deprived the jury of a satisfactory basis for
evaluating the truth of the extra-judicial declara-
tion. United States v. Adams, 9th Cir. 1971, 446 F.
2d 681, 683, cert. denied, 404 U.S. 943, 92 S. Ct.
294, 30 L. Ed 2d 257. If so, and if the challenged
testimony is ‘‘crucial’’ to the prosecution or ‘“de-
27
vastating’’ to the defense, it must be excluded.
ye avol he ne-
‘Several Courts of Appeals have av oided t
cessity of the case-by-case analysis in some —
eral prosecutions by discerning a oy oa :
tween the Confrontation Clause and the fe er
co-conspirator rule that the Supreme —— 2
not find in Dutton’s analysis of the more “7 -
ranging Georgia co-conspirator exception. We
need not yet call this Court to that muster, a.
ever, since it is apparent here that the ——
testimony was neither ‘crucial’ nor ‘devastat-
ing.’ ”’
It is submitted that this case fits squarely within
the Menichino test and that the error committed was
harmful. This Court has ‘‘followed the undeviating
rule... that the rights of confrontation and cross-
examination are among the fundamental requirements
of a constitutionally fair trial.’’ Parker v. Gladden,
385 U.S. 363, 364-65 (1966). For reasons we believe
we have amply demonstrated, it would be impossible
for this Court ‘‘to declare a belief that [ee error |
was harmless beyond a reasonable doubt.’? Chapman
v. California, 386 U.S. 18, 24 (1967).
I The Decision Below Raises A Significant And Recurring yl
lem Concerning A Meaningful Implementation Of A
fendant’s Fundamental Right Ao Be Convicted Only Upon
Proof Beyond A Reasonable Doubt.
In whatever way it should have been articulated a
the jury, an essential element of the crime mage 2
in this indictment was the non-existence of any “
owed by Remedio to petitioner. Otherwise the refer-
ence to ‘“‘property of another person’ in Delaware
Code Section 841, incorporated into Section 846, is
28
meaningless.’ A reading of the record belo
unmistakably that this point was caine "ia
there. While the court did make reference to “his
property” (Remedio’s, Tr. 751) and did advise the
jury of the affirmative good faith defense available
under Delaware law, at no time did it specifically in-
form the jury that it had a threshold question to de-
cide, that it must find beyond a reasonable doubt that
Remedio owed petitioner no debt. The effect of the
instructions, as a whole, was to shift the burden of
oe to be agree to prove, by a preponderance
of the evidence, that h lev iti
sihiie din tae e believed the funds were legiti-
‘At the outset, we reiterate that if the government
did not prove beyond a reasonable doubt that Reme-
dio did not owe petitioner, then whatever else he may
have been guilty of under Delaware law, petitioner
was not guilty of extortion. Had the trial in the court
below been that of the civil suit over the debt. we
suggest that any fair reading of the record com els
the conclusion that neither side would have seiidlied
under any standard of proof in civil cases. The evi-
dence therein was hopelessly in dispute and the onl
thing that could have been proven beyond a ain
able doubt was that there was a dispute. The trial
court did not focus on this issue. Its failure to do so
was reversible error under the doctrine of Screws v
United States, 325 U.S. 91 (1945) to be discussed
infra, and for another reason.
*“*A person commits extortion w i i i
in See. 841 of this criminal code, . remeedn ‘eae oo.
Scliver Property . . .’ Title 11, Delaware Code, See rer
— is guilty of theft when he takes, exercises control over or
tains property of another intending to deprive him of j
appropriate it. . . .’’ Title 11, Delaware Code, Sec. 841 cies
29
In In re Winship, 397 U.S. 358 (1970), this Court
placed the right to proof beyond a reasonable doubt
in the category of fundamental Constitutional rights.
Justice Harlan set forth the crucial function of the
reasonable doubt standard of proof in his separate
concurring opinion therein, 397 U.S. at 370-72. His
thesis was that in a judicial proceeding in which there
is a dispute over the facts of an earlier event, the
fact-finder cannot acquire unassailably accurate
knowledge of what actually happened. Therefore, the
trier of fact in a criminal case will sometimes erro-
neously convict and sometimes erroneously exonerate.
The standard of proof is critical because it regulates
the relative frequency of these two types of mistaken
outcomes. The ‘‘beyond a reasonable doubt”’ standard
is crucial to implementing society’s uniquely low tol-
erance for mistaken convictions in criminal cases. Jus-
tice Harlan concluded:
“In a criminal case, we do not view the social
dismtility of convicting an innocent man as
equivalent to the disutility of acquitting someone
who is guilty. As Mr. Justice Brennan wrote for
the Court in Speiser v. Randall, 357 U.S. 513,
525-526 (1958) :
‘‘ ‘There is always in litigation a margin of error,
representing error in fact finding which both par-
ties must take into account. Where one party has
at stake an interest of transcending value—as a
criminal defendant his liberty—this margin of er-
ror is reduced as to him by the process of placing
on the other party the burden . . . of persuading
the fact finder at the conclusion of the trial of his
guilt beyond a reasonable doubt.’
“Tn this context, I view the requirement of proof
beyond a reasonable doubt in a eriminal case as
bottomed on a fundamental value determination
30
of our society that it is far worse to convict an
innocent man than to let a guilty man go free.”
(Emphasis added. )
When this Court ruled Winship retroactive in its
per curiam opinion in Ivan v. City of New York, 407
U.S. 203, 204-05 (1972), it reiterated the fundamental
nature of the ‘‘proof beyond a reasonable doubt’’
standard.
“Winship expressly held that the reasonable
doubt standard is a prime instrument for reduc-
ing the risk of conviction resting on factual error.
The standard provides concrete substance for the
presumption of innocence—that bedrock ‘axio-
matic and elemeutary’ principle whose ‘enforce-
ment lies at the foundation of the administration
of our criminal law’... ‘Due process commands
that no man shall lose his liberty unless the Gov-
ernment has borne the burden of . . . convincing
the fact finder of his guilt.’ To this end, the rea-
sonable-doubt standard is indispensable, for it
‘impresses the trier of fact the necessity of reach-
ing a subjective state of certitude of the facts in
issue.’ ’’ 407 U.S., at 204-205.
It is true that this Court held, in Lego v. Twomey,
404 U.S. 477 (1972), that proof beyond a reasonable
doubt was not necessary to sustain the admissibility of
an allegedly coerced confession. But, in so holding,
this Court re-affirmed the vitality of the Winship rule
with respect to the burden of proof necessary to sus-
tain a guilty verdict and indicated that had Lego ar-
gued the sufficiency of the evidence to meet the Win-
ship standard with respect to the issue of guilt, then
a constitutional violation would have oceurred.
‘“‘A high standard of proof is necessary, we said,
to ensure against unjust convictions by giving
31
ce to the presumption of innocence... .
A puilty verdict fs not rendered less reliable or
less consonant with Winship simply because the
admissibility of a confession 1s determined by a
less stringent standard. Petitioner does not main-
tain that either his confession or its voluntariness
is an element of the crime with which he was
charged. He does not challenge the constitutional-
ity of the standard by which the jury was in-
structed to decide his guilt or innocence; nor does
he question the sufficiency of the evidence that
reached the jury to satisfy the eee standard
of proof. Petitioner’s rights under Winship have
not been violated. Lego v. Twomey, 404 U.S. 477,
487 (1972). (Emphasis added).
And most recently, in Mullaney v. Wilbur, 95 S.Ct.
1881 (1975), this Court held that where an essential
element of the crime of homicide or manslaughter 1s
that it be intentional, placing the burden of proof on
the defendant to establish by a preponderance of the
evidence that he acted in heat of passion on sudden
provocation was inconsistent with his right to hold
the prosecution to the standard of proving beyond a
reasnable doubt every fact necessary to constitute the
crime charged.
In Mullaney, Mr. Justice Powell, writing for the
Court, observed :
‘‘Not only are the interests underlying Winship
implicated to a greater degree in this case, but
in one repsect the protection afforded those in-
terests is less here. In Winship the ultimate bur-
den of persuasion remained with the prosecution,
although the standard had been reduced to proof
by a fair preponderance of the evidence. In this
ease, by contrast, the State has affirmatively
shifted the burden of proof to the defendant. The
result, in a case such as this one where the de-
32
fendant is required to prove the critica
dispute, is to increase further the likelihood of
an erroneous murder conviction. Such a result
directly contravenes the principle articulated in
Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct
1332, 1342, 2 L.Ed. 1460 (1958) : a
‘**[W here one party has at stake an i
transcending value—as a criminal defendant ‘bs
eg ag margin of error is reduced as to
‘im by the process of placing on the [prosecu-
tion] the burden . . .of persuading the fact finder
at the conclusi f j "oe
hk, on of the trial. ... 85 S.Ct., at
This case is indistinguishable from Mullaney. Here
a critical element of the offense charged is that the
petitioner extorted property that he did not believe
was his. The trial court’s instruction nonetheless
shifted the burden of production and persuasion to
the defendant to demonstrate affirmatively, by a pre-
ponderance of the evidence, that the property involved
was his, and not that of the victim. It is difficult to
conceive of a clearer case of departure f
lished constitutional sule. ae on Se
Il. The Failure Of The Trial Court To Instru
ct The J
On The Essential Elements Of The Offense Charged rye
tutes Plain Error Requiring Reversal.
It is axiomatic that the j i
= judge must instruct the
jury accurately on the required elements of the of-
fense charged. This is so even where no objection was
taken to the charge. The relevant rule was stated by
this Court in Screws v. United St 5
ma. ates, 325 U.S. 91, 107
“It is true that no excepti
é ption was taken to th
trial court’s charge, . . . [But] where the ones
33
is so fundamental as not to submit to the jury
the essential ingredients of the only offense on
which the conviction could rest, we think it neces-
sary to take note of it on our own motion. Even
those guilty of the most heinous offense are en-
titled to a fair trial. Whatever the degree of guilt,
those charged with a Federal crime are entitled to
be tried by the standards of guilt which Congress
has prescribed.”’ (Emphasis supplied).
In the case under review the trial judge in his in-
structions did not merely omit an element of the of-
fense charged, but rather, while purporting to read
from the statute, actually altered significantly the
elements of the crime charged, effectively eliminating
an affirmative defense that would have been available
to the defendant had the judge had accurately in-
structed the jury.
The defendant was indicted for ‘‘carrying on of an
unlawful activity, said unlawful activity being ex-
tortion, in violation of the laws of the State of Dela-
ware, 11 Del. Code § 846(1) and (2), ... [and] in
violation of § 1952(a)(3).’’ Indictment, Criminal Ac-
tion No. 74-63. The defendant was, of course, entitled
to rely on the law as set forth in the sections of the
statutes cited in the indictment. Otherwise, he would
not have notice of the ‘“‘true nature of the charge
against him, the first and most universally recognized
requirement of due process.’’ Smith v. O’Grady, 312
U.S. 329, 334 (1941). See also Cole Vv. Arkansas, 333
U.S. 196, 201 (1948; In re Ruffalo, 390 U.S. 544, 551
(1968).
Delaware Code, Title 11, § 846 provides, in perti-
nent part:
34
‘‘A person commits extortion when, wi
tent prescribed in § 841 of this Criminal Code
he compels or induces another person to deliver
property to himself or to a third person by means
of instilling in him a fear that, if the property
is not so delivered, the defendant or another will:
(1) Cause physical injury to anyone; or
(2) Cause damage to property; .. .”
Delaware Code, Title 11, § 841 provides, in perti-
nent part:
‘A person is guilty of theft when he takes, exer-
cises control over or obtains property of another
person intending to deprive him of it or appro-
priate it. Theft includes th hs
§§ 842 through 846.” es the acts described in
Delaware Code, Title 11, § 847 provides for an af-
firmative defense to the offense set forth in § 846:
‘*(a) In any prosecution for theft or
it 1s an affirmative defense that the nie om
appropriated by the actor under a claim of right
made in good faith, to do substantially what he
did in the manner in which it was done.”’
The judge in instructing the jury did not accurately
read to them the relevant sections of the Delaware
Code set forth above. Instead, his i +j
as follows: , his instructions were
“‘The indictment charges that th i
e conspir. -
(eo therein was a conspiracy to violate “Tithe
8, United States Code, Section 1952(a) (3). That
statute reads, in relevant part, as follows:
sé
‘(a) Whoever travels in interst
travels ate comm
or uses any facility in interstate commerce with
intent to otherwise promote, manage, establish,
35
carry on, or facilitate the promotion, manage-
ment, establishment, or carrying on, of any un-
lawful activity, and thereafter performs or at-
tempts to perform any of the acts specified in
subparagraphs (3) shall be guilty of an offense
against the United States.’
‘‘An unlawful activity is defined in that statute
to include extortion in violation of the laws of
the state in in which committed, in this case
Delaware.
‘Now, 11 Delaware Code Section 836(1) and (2)
relating to the offense of extortion provides, in
relevant part, as follows and I am reading:
‘‘¢4 person commits extortion when, with the
intent to deprive another person of his property
or to appropriate it he compels or induces an-
other person to deliver property to himself or to
a third person by means of instilling in him a
fear that, if the property is not so delivered, the
defendant or another will (1) cause physical in-
jury to anyone; or (2) cause damage to property.’
(Emphasis added) (Tr. pp. 743-44).
‘‘Extortion is the compelling or inducing a per-
son to deliver his property to the defendant or a
third party by means of instilling into that per-
son a her that, if the property is not so delivered,
the defendant or another (1) will cause physical
injury to someone or (2) will cause damage to
property. The compelling or inducement must be
with intent to deprive the coerced person of his
property. (Emphasis added) (Tr. p. 751).
‘‘However, the law of Delaware relating to extor-
tion also provides for an affirmative defense to
extortion, which you need to consider only if you
are satisfied that the Government has proven the
existence of every element of the crime of extor-
tion beyond a reasonable doubt.
36
‘This affirmative defense exists if you find that
the defendant has established by a preponderance
of the evidence that he intended to compel or in-
duce Mr. Remedio to deliver property to the de-
fendant because (1) the defendant believed in
good faith that he had a claim of right to the
property and (2) that he believed in good faith
that he had a right to do substantially what he
did in the manner in which it was done. In this
regard you are permitted to test the defendant’s
good faith belief of these two essential elements
of the affirmative defense by considering what a
reasonable person might have believed or how
such person would have acted in similar cireum-
stances.’’ (Emphasis added) (Tr. p. 752).
The instructions given by the judge tell the jury
that under the relevant Delaware law extortion “‘is
inducing a person to deliver his property to the de-
fendant”’ (emphasis added), which is patently not the
language of the Delaware Code. Instead, the code sec-
tions, which defendant was led to believe were appli-
cable, provide that extortion is accomplished by tak-
ing from another property—whether or not that
property is that of the person from whom it is taken.
Of course, if the property taken from another is that
of the defendant or property which was appropriated
by defendant under a good faith claim of right, then
no offense would be committed. The affirmative de-
fense provided in Title 11, Delaware Code, § 847, was
clearly enacted so that no conviction would obtain
where a defendant charged with extortion could dem-
onstrate by a preponderance of the evidence that the
property involved was appropriated under a claim
of right, made in good faith. By charging that the
affirmative defense was available only after the jury
found beyond a reasonable doubt that the property
37
i ictim (his
appropriated was that of the alleged vic ;
po not that of another) the defense of claim of
right to the property was virtually precluded.
If the defendant had been aware from the outset
of the prosecution that he was charged with compell-
ing or inducing another person to deliver his prop-
erty’? then he would have endeavored to demonstrate
that the property in question was not that of the
alleged victim, Remedio, but rather property of an-
other, as well as contending that the petitioner had a
good faith claim of right to the property involved.
There is no need to speculate upon whether the er-
ror committed was harmful. The trial judge altered
the elements of the crime charged in the indictment
without giving notice to the defendant so that he could
develop his defense at trial to meet the elements of
the new crime fashioned by the judge, and effectively
eliminated the affirmative defense that would have
been available under an accurate and correct instruc-
tion.
CONCLUSION
For the foregoing reasons this Honorable Court is
respectfully requested to grant the writ of certiorari
prayed for pursuant to Rule 19(b), Supreme Court
Rules.
38
Respectfully submitted,
Brian P. GETTINGS,
JERRIS LEONARD and
JOANNE F. ALPER,
LEONARD, COHEN & GETTINGS
1747 Pennsylvania Ave., N.W.
Washington, D.C. 20006
WiLuiAM H. UFFELMAN
Biccs AND BATTAGLIA
1026 Farmers Bank Building
Wilmington, Delaware 19899
Ovip C. Lewis
2320 Loyola Road
University Heights, Ohio 44118 APPENDIX
Attorneys for Petitioner
la
APPENDIX
Opinion Of The Court Of Appeals
(Filed July 17, 1975)
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 75-1213
Unitep States or AMERICA
Vv.
ALBERT Martin SHAFFER, JR.,
AKA, ‘*‘Monxk’’, AnD Bast. VEsPE
Basit Vespre, Appellant
(D. C. Crim. No. 74-71)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Argued June 24, 1975
Before Van Dusen, Rosenn and Wes, Circuit Judges
Victor F. Barracuia, Esa,
Wiiu1am H. Urreitman, Esq.,
Biggs & Battaglia,
Wilmington, Delaware,
Attorneys for Appellant
W. Larrp Sraprer, JR.,
U. S. Attorney;
Aan J. Horrman,
Assistant U. S. Attorney;
Wilmington, Delaware,
Attorneys for Appellee
2a
OPINION OF THE COURT
(Filed July 17, 1975)
Per Curtam:
The defendant appeals from his sentence on a conviction
for extortion and conspiracy to commit extortion in vio-
lation of 18 U. S. @. § 1952(a)(3) and 18 U.S. @. § 371.
The district court wrote two opinions: United States vy.
Vespe, 389 F. Supp. 1359 (D. Del. 1975) ; United States v.
Shaffer, 383 F. Supp. 339 (Dy Del. 1974), which contain
the background facts.
In his first argument for reversal, the defendant
strongly urges us that the district court committed re-
versible error in one of the cautionary remarks it made
in the course of the trial. At that point in the trial, the
Government sought to introduce the out-of-court declara-
tions of Vespe’s deceased co-defendant, Shaffer, through
the testimony of the complaining witness, Remedio. Coun-
sel for Vespe objected that the Government had not yet
proved prima facie Vespe’s participation in a conspiracy
by proof aliunde. United States v. DeLazo, 497 F. 2d 1168,
1170 (3d Cir. 1974). The district court admitted the testi-
mony, subject to its being stricken if the Government
failed subsequently, by proof aliunde, to demonstrate
prima facie Vespe’s connection with a conspiracy, with
the following precautionary instruction:
‘*‘Now, members of the jury: This is a conspiracy
case and what has just been testified to is an alleged
statement by a co-conspirator, Shaffer. You may not
take into consideration—I have permitted this evi-
dence to be admitted, subject to being stricken later
if it is not proven by the Government that there was
a conspiracy that existed between Mr. Vespe and
Mr. Shaffer. If there was a conspiracy and that is
proven by independent evidence, aside from any dec-
larations made by Shaffer, then you may consider that
evidence. But you cannot consider the evidence until
3a
ctually a
the Government has proven that there was a
conspiracy between Shaffer and Vespe, because a dec-
laration of Shaffer could not be held against Vespe
under the rules of evidence in a court of law in the
United States.
‘‘So I have admitted this evidence as to the dec-
larations by Shaffer subject to the Government’s
proof that there was a conspiracy in existence between
Shaffer and Vespe.”’
N. T. 121-22 (quoted, 389 F. Supp. at 1370). The defend-
ant contends that the second sentence in this precautionary
instruction left the impression in the minds of the a
that the conspiracy would have been proven if the oie
did not subsequently strike the evidence. Since oa —
did not subsequently strike the evidence, the de “9 a
argues that the jury was in effect directed to find the de-
fendant guilty.
If the second sentence stood alone, we would have to
agree that it improperly usurped the jury’s function 1
determining whether Vespe and Shaffer had rpg :
However, the offending sentence was embedded in a pe
trial in which the instructions to the jury, when rea =
a whole, on the co-conspirator rule were not only re ;
ent with due process but were actually favorable +
accused. The remainder of the precautionary instruc =
quoted above, in particular, suggests that the ne per
must prove to the jury that a conspiracy oo a
Vespe and Shaffer before they may consider : he
hearsay declarations as evidence against Vespe. To
same effect was the court’s final charge:
‘‘In determining whether a conspiracy existed, ~
jury should consider the actions and declarations 0
all the alleged participants. However, in re
whether a particular defendant was a member of ~ 1e
conspiracy, if any, the jury should consider only his
-
fa
ne and statements. He cannot be bound by the acts
or declarations of other participants until it is estab-
lished that a conspi :
piracy e
of its members. 7 Canes, ne hee Ge Was Gas
ogee it appears beyond a reasonable doubt
evidence in the case that a i
isted, and that a defendant | ae
was one of its members
tg a sg thereafter knowingly made od
1e acts thereafter knowing]
me a y done, by an
ipo found to be a member, may be ee Fos
a jury as evidence in the case as to the porsseertn 4
ae to have been a member, even though the state-
oe — may have occurred in the absence and
1e knowledge of the defendant i
such statements and acts w | cae ae cal
; ere knowingly mad
done during the continuance of such pn a
~?
in furtherance of so
spiracy. me object or purpose of the con-
sé M4
psc oyy: any admission or incriminatory state-
- made or act done outside of court, by one per
» May not be considered as evidence against any
person, who was not present .
: and who d
the statement made, or see the act done ~ a Sow
sé
Ps pay Newresige of any conspirator, which
in furtherance of the spi
conspirac
ws is y, or made be-
e its existence, or after its termination, may be
* The last three
, ; paragraphs of the above- . .
~ ae with § 29.06 of Devitt & a "Seat a
hey Bsang Instructions (2d ed.). See also jr = — Jury
Oc Ke
cket Part to that volume and Supplemental seen Ande
. - ile
No. 1 (1974-1975) ; ef. United S
92 (3d Cir. 1971). ; ef. United States v. Bey, 437 F. 2a 188, 191-
5a
N. T. 743, 747-48 (quoted, 389 F. Supp. at 1371). By in-
structing the jury that they had to find beyond a reason-
able doubt that Vespe was connected with a conspiracy
before they could consider Shaffer’s declarations against
him, the court in effect required the Government to meet
its burden on the basis of the proof aliunde alone. If the
proof aliwnde did not convince the jury of Vespe’s guilt
beyond a reasonable doubt, the court’s charge did not al-
low them to resolve their doubts through the use of Shaf-
fer’s declarations. Because the court’s final charge thus
required the Government to meet its burden by proof
aliunde, we believe that any prejudice which may have
been caused by the court’s earlier precautionary instruc-
tion was ultimately nullified, so that reversible error was
not committed.
A second argument advanced by the defendant also de-
serves some discussion. The defendant contends that be-
eause it violated Delaware law for Delaware police officers
to record his telephone conversations with Remedio, the
recordings should not have been admitted into evidence.
11 Del. C. § 1335 (quoted in part, 389 F. Supp. at 1372 n.
10) provides in part:
‘A person is guilty of violation of privacy when, ex-
cept as authorized by law, BO acces
(4) Intercepts without the consent of all parties
thereto a message by telephone ... including private
conversations.’’
The district court found, first, that § 1335 does not prohibit
a party to a telephone conversation to record it, and, sec-
ond, that even if § 1335 were violated, it would have no
effect on the admissibility of the recordings in federal
court. 389 F. Supp. 1372-73. Because we agree with the sec-
ond ground for the district court’s decision, we need not
address the question of the proper construction of § 1335.
It is thoroughly settled that, in criminal cases, the fed-
eral district courts will decide evidence questions on the
6a
basis of federal, rather than state, law. United States v.
Armocida, slip op. at 2-3 (3d Cir. No. 74-1091, Apr. 11,
1975); United States v. Vespe, supra at 1372-73 (citing
cases). Cf. United States v. Bedford, slip op. at 5-6 (3d
Cir. No. 74-2119, June 30, 1975). This rule is grounded in
sound policy considerations. If the states could require
federal courts to exclude evidence in federal criminal
cases, some convictions would undoubtedly be lost, and the
enforcement of congressional policy would be weakened.
We recently decided that ‘‘the warrantless recording of
a telephone conversation with the consent of only one of
the parties is perfectly proper under federal law... .’’
United States vy. Armocida, supra at 3. The defendant,
however, inveighs against the creation of a situation in
which the federal courts approve violations of Delaware
law by Delaware police officers. In considering this argu-
ment, we note initially that the FBI had become involved
in the case before Remedio’s phone was tapped. 389 F.
Supp. at 1364. In this situation, it is difficult to understand
how Delaware’s policy of protecting its residents’ privacy
could be served by excluding the evidence developed by the
Delaware officers at the request of Remedio, a Delaware
citizen. Such a holding would simply force the FBI to do
the tapping in similar cases in the future, which would be
clearly permissible under our holding in United States vy.
Armocida, supra, and which would be indistinguishable
from the point of view of the person whose call was inter-
cepted, from the tapes in the case before us. Furthermore,
Delaware can, if it chooses, enforce its policy with respect
to its own officers through the use of civil suits against
persons who violate $1335. For these reasons, we have
concluded that the possible harm caused to Delaware’s
policy occasioned by admission of the wiretap evidence in
the case before us is greatly exaggerated by the defendant,
and should not deter us from enforcing federal standards
of admissibility.
7a
We have carefully considered all a —
foun em to -
ised by the appellant, and have te!
sat suo Accordingly, the judgment of the district court
will be affirmed.
2'The remaining contentions include the following:
(1) After the court had erred in directing the es se
if Shaffer’s statements were not stricken, — aches
ost the court ry oy = — a bad _ er
i > j endant guilty s satisfi
a * -say- ee bs conduct of Shaffer (no objection
a en ~~ eourt’s instructions after the —-
NT. 676-77 & 759 and Document 18 in Crim. No. 74-71,
D. Del., Third Request for Instructions) ;
(2) the court erred in admitting the out-of-court state
mente of Albert Shaffer as against the defendant Vespe ;
(3) the defendant is entitled to a judgment of acquittal
i i be
because, based on evidence, a verdict of guilty could
——9
y e p 1
probable inference ; a —
i i reas
dant is entitled to a new trial Dy
dag: sheer and prejudicial statements made by the
e failure of the prose-
knew, or
: ; '
improper, incorrect, :
prosecuting attorney and be¢ ause of th wigs
euting attorney to correct testimony W
should have known, was prejudicial and incorrect ;
(5) the defendant is entitled to judgment of —
for the reason that the conduct complained of is no
18 U.S. C. § 1952; |
(6) the charge against the defendant Vespe geo
been dismissed because of fatal variances between the alleg
tions in the indictment and the proof;
(7) the court committed fundamental = en
or in instructing the jury that the defen yt oy
ser of proving that the debt sought Ay _ ok
Vespe was Vespe’s property (see N. T. 73 ; Y . aes
hich are not inconsistent with Mulaney ¢ 2 i "es
= US (Opinion of June 9, 1975, 48 U. 8. L. W.
4695), and page 3 of Document 18 in Crim. No. 74-71, D.
Del.; see also parentheses under (1) above).
— -_- — —
a A le
8a
Opinion And Order Of The District Court
(Dated January 31, 1975)
Criminal Action No. 74-71
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Unirep States or America, Plaintiff,
Vv.
Bastz Vespr, Defendant.
Raupx F. Ken,
United States Attorney,
Bruce L. Tat,
Assistant United States Attorney
Wilmington, Delaware
For Plaintiff.
Victor F. Barractiza,
Wiru1uM H. Urretman,
Biggs and Battaglia,
Wilmington, Delaware,
For Defendant.
Latcuum, Chief Judge.
o 7
ont — 6, 1974, the Grand Jury returned a four
— Pager against Albert Martin (‘‘Monk’’)
, e r. and Basil Vespe.? The first three counts
arged § haffer with three substantive violatio f ,
traveling in interstate commerce, or usin ‘ le ai
be used interstate telephone facilities, - ed
ither
ng : ausing to
ith intent to carry
* Docket Item 1. .
* Following the
g return of the indict
— ‘tment Shaffe
— ” a Enellenburg, IT, Esquire hare cease inally
. , y; ; Y ' S
presented by William H. Uffelman, Esquire, then ip ha a
Tenenbaum, Esqui
, &squire, and finally by H , 7
who acted as Vespe’s trial counsel. y Menry A. Wise, Jr., Esquire,
9a
on an unlawful activity involving extortion in violation of
18 U.S.C. § 1952(a)(3). The fourth count charged Shaffer
and Vespe jointly with conspiracy to travel in interstate
commerce and to use or caused to be used interstate tele-
phone facilities with the intent of carrying on an unlawful
activity, i.e., extortion, in violation of 18 U.S.C. § 371.
Both defendants filed pre-trial motions to dismiss the in-
dictment under Rule 7(c), F.R.Crim.P., on the ground
that it failed to charge any offense.* These motions were
denied on September 23, 1974, United States v. Shaffer, et
al., F.Supp. (D. Del. 1974).
On September 15, 1974, Shaffer was found shot to death *
in his home state of New Jersey which left Vespe as the
sole defendant to stand trial on Count IV of the indict-
ment.
Trial commenced on October 15, 1974 and concluded on
October 22. The jury found Vespe guilty as charged. The
case is now before the Court on defendant’s motion for
judgment of acquittal pursuant to Rule 29(c) or for a new
trial, pursuant to Rule 33. F.R.Crim.P. The Court will
treat the two motions separately.
I. Motion For JUDGMENT OF ACQUITTAL
The applicable standard when passing on a motion of
judgment for acquittal after trial under Rule 29(c) is well
settled. ‘‘[T]he Court serutinizes the evidence, including
reasonable inference to be drawn therefrom, from the
point of view most favorable to the government and assume
the truth thereof. If there is substantial evidence justify-
ing the inference of guilt, irrespective of the evidence ad-
duced by the defendant, the Court must deny the motion.”’
United States v. McGonigal, 214 F. Supp. 621, 622 (D. Del
8 Docket Items 2 & 10.
* Docket Item 23.
10a
1963) ; Unit
om nited States v. Roy, 213 F. Supp. 479, 480 (D. Del.
Count IV of the indictment relating specifically to Vespe
charged that he and Shaffer, in violation of 18 U.S.C. § 371
did willfully and knowingly combine, conspire and a ree
with each other to violate 18 U.S.C. § 1952(a) (3) b *1)
traveling in interstate commerce between New J com and
Delaware and (2) by using and causing to be used inte
state telephone facilities from New Jersey to onc
an the intent to carry on the unlawful activity of extor-
oo to wit, the obaining of monies from Joseph Remedio
rough threats of physical injury and property damage i
violation of Delaware law, 11 Del. C. § 846(1) and (2) “The
a charges eight overt acts were committed in
mcg i of the conspiracy as follows: Shaffer traveled
from New Jersey to Delaware on July 10, 1974 and used
interstate telephone facilities on July 10 12 and 22 1974
and that Vespe traveled from New Jersey to Delaware on
July 17, 1974 and used int
: t ban ed .
July 12, 15 and 22, 1974. erstate telephone facilities on
on eg charged the jury that in order to convict
pe for conspiracy the government was required to
prove beyond a reasonable doubt (1) that the conspir
described in the indictment was willfully formed and 7 “4
existing at or about the time alleged; (2) that the defend.
ant willfully became a member of the conspiracy; (3) th t
wad ys = ppg thereafter knowingly committed at
e of the overt acts charged in the indictment
about the time and place alleged; and (4 i
é alle ; ) that such t
act was knowingly done in oe
purpose of the Gunite on 740).° ienetiaatariaa
A. Insufficient Evidence
The first ground of the moti j
ion for judgment of acquit-
tal is based on defendant’s contention that there bana
_-_ --
* Tr. refers to the Trial Transcript.
lla
sufficient evidence to show the existence of an agreement
between Shaffer and Vespe to obtain money from Joseph
Remedio through the use of threats.
The evidence adduced at trial from the point of view
most favorable to the government reveals the following
facts: Joseph W. Remedio (‘**Remedio’’) is a general con-
tractor with offices in Wilmington, Delaware who has been
in the construction business in Wilmington and the sur-
rounding areas for 24 years (Tr. 104-105). As a general
contractor, he bids on proposed construction jobs, and if
he is awarded the project as the low bidder, he oversees
and builds the project with the use of subcontractors and
his own employees (Tr. 104-105). Remedio first established
a business relationship with Vespe, a concrete subcon-
tractor, beginning in 1970 in connection with the Peck Sus-
sex Rug Mills building that Remedio was constructing at
Bridgeville, Delaware (Tr. 106, 109, 219, 631-632). In 1971,
Vespe’s firm also was the concrete subcontractor on two
high-rise public housing projects being built by Remedio
at Millville and Penns Grove, New Jersey (Tr. 111). A dis-
pute arose over Vespe’s performance and his subcontracts
on these projects were terminated with the result that there
is civil litigation pending in a New Jersey state court in
which both Remedio and Vespe claim each is owed money
by the other (Tr. 112, 184, 220).
Sometime about September 1973, Remedio was visited
by two brothers from Philadelphia by the name of DeCarlo,
(Tr. 113, 237, 489) ; they presented a document purportedly
signed by Vespe, addressed ‘*To Whom It May Concern’”’
which authorized DeCarlo to collect any balances due Vespe
without mentioning any amount or any specific project on
which Vespe worked (Tr. 113-114). The DeCarlos stated
they were sent down to collect a balance for Vespe of ap-
proximately fifty to sixty thousand dollars and wanted to
know what Remedio intended to do about it (Tr. 114).
Remedio responded that he owed Vespe no money, that all
money had been expended on the project to complete
12a
Vespe’s unperformed subcontract work, and that he was
not going to pay any additional sum (Tr. 114). When the
DeCarlos were told this, they began to threaten Remedio
and specifically stated that they knew that he had a nice
family, and if he didn’t want any trouble and anybody to
get hurt, he better start paying his debt (Tr. 114-115).
On July 3, 1974 when Remedio returned to his office he
found two telephone messages to call Shaffer, whom he did
not know (Tr. 123), immediately on a subject matter of
importance (Tr. 115). Remedio was unable to reach Shaffer
by telephone until the following day, July 4. Shaffer told
Remedio he wanted to discuss the Vespe matter. When
Remedio indicated there was nothing to discuss and that
their attorneys were handling the matter which was already
in court (Tr. 116), Shaffer responded that he wished to
hear nothing about a court or lawyers, that he was coming
to see Remedio at his Wilmington office on Monday or
Tuesday, that he had better be there, that, if Remedic was
ra baba oH when Shaffer arrived, it was going to be
oo bad for him and that he could ge in hi
prlige darting uld get a bullet in his head
Following Shaffer’s telephone conversation, Remedio
called Detective Lt. Terrence Patton of the Wilmington
Police Bureau, (Tr. 123, 62), Remedio’s brother-in-law
(Tr. 124, 62), and related to him Shaffer’s telephone threats
and the earlier visit of the DeCarlo brothers (Tr. 122-
123). Patton advised Remedio to contact him if he heard
from Shaffer again (Tr. 123). The following Monday and
Tuesday (July 8 and 9) Remedio heard nothing further
from Shaffer (Tr. 123). Remedio had been in the process
of moving his office. a move which had been completed
over the preceding weekend (Tr. 123, 106).
On July 10 (a Wednesday) Shaffer telephoned Reme-
dio’s office and stated: ‘‘We went to your old office and we
just found out you moved; we will be there in ten minutes
don’t leave.’’ (Tr. 124). Remedio immediately contacted
13a
his brother-in-law, Detective Patton, who told Remedio to
detain Shaffer in the front office until the police officers
could arrive (Tr. 124).
Deectives Patton and Leroy H. Landon soon thereafter
arrived at Remedio’s new place of business and were
ushered back to Remedio’s office. Shaffer and an associ-
ate were already in the reception area waiting to see
Remedio when the detectives arrived (Tr. 125, 67-69, 77).
The detectives were wearing plain clothes and when Shaf-
fer and his associate were shown into Remedio’s office,
Remedio introduced them as his business associates (Tr.
125, 69, 78-79).
Shaffer introduced himself to Remedio and indicated he
was there ‘‘to talk about the Vespe matter.’’ He stated
that Vespe contended Remedio owed Vespe over $80,000.
Shaffer claimed he was with the organization, was comp-
troller, and had been authorized to collect any accounts
receivable (Tr. 126). After Remedio told Shaffer that he
had terminated Vespe’s subcontract on the Millville proj-
ect because he refused to take corrective measures, Shaffer
said: ‘‘Vespe owes me $400,000 and I want it,”’ and that
‘‘we are visiting all the accounts receivable, and it seems
like there were four of them just like yours, they are all in
court, and I am getting to the bottom of it because I am
owed all this money.’’ (Tr. 127). Shaffer also said that
although he was the comptroller, he still had a large in-
vestment in the corporation. and was upset about the ex-
penditures that Vespe had made, such as a 51-foot yacht
charged to the company (Tr. 127-128). Remedio showed
Shaffer documents supporting his position that no money
was owed. After about a half hour of discussion, Shaffer,
stating that he had seen enough and felt satisfied, said that
he would be in touch with the attorneys handling the liti-
gation and then left the meeting with his associates (Tr.
128-129).
l4a
Shaffer made no threats (Tr. 75) at the meeting al-
though the discussions were somewhat tense (Tr. 7071, 81,
87). Before leaving, Shaffer was informed by Remedio
that Patton and Landon were Wilmington detectives and
that Patton was his brother-in-law (Tr. 71). Remedio told
Shaffer: ‘‘I don’t know who you fellows were; I was
afraid of you, frankly, and I felt I needed somebody here
to help me out.’’ (Tr. 71).
Patton and Landon substantiated Remedio’s testimony
of the tenor and content of the meeting with Shaffer and
his associate (Tr. 6-71, 77-82). In addition, Detective Lan-
don testified that upon entering Remedio’s office he noticed
a black chauffaur-driven limousine parked outside and he
took down the license number (Tr. 78). Landon testified
that he believed the limousine that Shaffer had at Reme-
dio’s office was the same, or at least it looked like the
same, automobile that Vespe later used to visit Remedio
(Tr. 92, 95-96).
Approximately forty minutes after Shaffer left the
meeting Remedio received a telephone call from Shaffer
(Tr. 129-130). Shaffer began the conversation by saying
‘What do you take me for, some damn fool .. . having
police in your office.’’ (Tr. 130). He then stated that Vespe
contended Remedio owed Vespe over $80,000 and that he
was going to pay $10,000 a week (Tr. 131). Remedio first
stated he didn’t owe Vespe a dime (Tr. 130), and after
being pressed by Shaffer said he didn’t have $10,000 a
week as things were tight in the construction business (Tr.
131). Shaffer responded: ‘‘ Well, you better raise it. We
are going to chip at you a little at a time. I know where
you live, I know you got a wife and son. We are going
to get your wife or your son first to show you we mean
business, and I got the men to do it. . . . So $10,000 a
week or you’re a dead Dago.’’ (Tr. 131). When Remedio
again protested, Shaffer repeated that Remedio had better
start paying or he was going to be dead, that they meant
business, that they would hit his son or his wife and
15a
maybe pick off his brother, that they knew where Reme-
dio lives and that ‘‘I don’t give a damn if you tell the
police, you can’t watch your family night and day.’’ (Tr.
131-132). He further ordered Remedio to start sending
the money to Basil’s (Vespe) office every Friday (Tr. 132).
He first wanted the money to be sent in eash, but, after
Remedio objected, Shaffer agreed to checks saying ‘‘ Okay,
start sending checks, and if you want to, you can make
them out to Vespe Contracting Company,’’ and deduct the
amount of the payment from the $80,000 and show the
running balance with each payment made (Tr. 132). When
Remedio asked how he would know whether any checks
he sent would be credited to the amount alleredly owed,
Shaffer advised him not to worry as he was in Vespe’s
office at the time he was telephoning Remedio (Tr. 133).
Just before Shaffer hung up, Remedio received a phone
eall on another line from the Wilmington Detective Divi-
sion (Tr. 133-134). After Shaffer’s call was terminated,
Remedio crossed to the other line and was advised by
Detective Patton to come to the police station because they
had run a background check on Shaffer which showed him
to be ‘‘a very violent man.’’ (Tr. 133-134). Remedio told
Patton that he had just been threatened on the phone by
Shaffer and he went directly to the police station (Tr.
133-134, 72-73).
At the police station, Remedio made a formal com-
plaint and the Wilmington Police contacted the FBI. After
FBI agents were called in, Remedio agreed to have elec-
tronic devices installed in his offices to monitor and record
any telephone conversations he might have with Shaffer
or Vespe (Tr. 134, 136, 83). Upon dictating a report of his
contacts with the DeCarlo brothers and Shaffer, Remedio
frightened for the safety of his family and himself, em-
ployed off-duty Wilmington police officers to guard his
home, his office and members of his family on a 24-hour
basis at a weekly cost of $1,900 (Tr. 99, 84-85, 135).
=
16a
On Friday, July 12, the date when Remedio was to send
his check to Vespe at Shaffer’s direction, Remedio placed
a phone call to Vespe at his office in Bellmawr, New
Jersey (Tr. 136). Vespe was not in but returned Reme-
dio’s call at 10:10 A.M. on that day (PX 3, Tr. 53-54).
During the course of this conversation, Remedio informed
Vespe that Shaffer had threatened him, that he had de-
manded $10,000 be sent to Vespe every Friday, that he
was scared and asked whether Shaffer worked for Vespe
and whether Vespe condoned such threats. (Tr. 137-139,
TT I. pp. 1-3).° Vespe indicated he had no knowledge of
what transpired between Shaffer and Remedio and stated
he had no control over what Shaffer said or did (Tr. 139,
141, TT I. pp. 2, 4). Vespe admitted that Shaffer worked
for him and was authorized to collect money for him (TT
I., pp. 3, 5, Tr. 486, 488, 492-494). When Vespe was talk-
ing to Remedio he stated: ‘‘ You know, you might have me
on tape but I’m not saying nothing. I’m . . . I’m too
smart. I don’t know what I’ve done. I haven’t done no
thing to ya. I don’t know whether Al Shaffer threatened
you or not but if a guy comes into your office, ah, even if
he works for me, I can’t control what a guy says or what
a guy does, you follow me.”’ (TT L, p. 4, Tr. 140).
Vespe also indicated Shaffer was a dangerous person
even though Vespe didn’t condone violence (Tr. 138-139).
He also stated, ‘‘I don’t know that much about the guy.
I know the guy does have some problems with the law.”’
(TT I. p. 4). ‘‘Some people say he’s been indicted for
9....’’ (TT L, p. 9). After an interruption by Remedio,
Vespe continued, ‘‘ And, ah, I don’t know whether it’s true
or not some of the things that they say, I read in the
‘TT refers to the typewritten transcripts of the taped conver-
sations (PX 4a-e, 5a and b) that Remedio had with Shaffer and
Vespe that the jury used as an aid when listening to the tapes.
(Tr. 157). The transcripts of the five taped conversations are
referred to by roman numerals I through V. See United States
y. Lawson, 347 F.Supp. 144 (E.D.Pa. 1972).
17a
paper where he was indicted for murder and I... .”’ (TT
L, p. 9). Vespe continued referring to Shaffer’s general
reputation. ‘‘They’ll impress ya that the guy is a bad
hombre. The guy is just, doesn’t have any reality for, ah,
life, for jail. I mean he’s been in jail.’’ (TT L, p. 9).
When Remedio asked why Shaffer was working for him,
Vespe commented, ‘‘ Well, because occasionally he, ah, he’s
very good, shall we say, he’s not a scared to fight, you
know a lot of times you gotta go out on a job and fight
with the colored people.’’? (TT I., p. 9). Vespe also told
Remedio that Shaffer carried a gun and he knew Shaffer
could use it (TT L., p. 10). Vespe also admitted he had
sent Shaffer down to see Remedio after having gone over
the accounts receivable with Shaffer but not to scare him
(TT L., p. 10).
Vespe also admitted having previously sent Vince De-
Carlo to Delaware to talk to Remedio about paying Vespe
the money he claimed was owing (TT L, p. 1). Because
Remedio was afraid of Shaffer, he asked Vespe to call
Shaffer off and asked whether it would be all right for
Remedio to send $1,000 instead of $10,000 demanded by
Shaffer (TT L., pp. 16-17, Tr. 13). Interspersed through-
out the conversation Vespe stressed he did not condone or
advocate violence and that he simply wanted to meet per-
sonally with Remedio in order to talk the matter over
(TT L., pp. 14-15). Regarding Remedio’s request that he
send a $1,000 check, Vespe said he would get back to him
after about twenty minutes (TT L, p. 17, Tr. 159).
Later on July 12 at 10:51 A.M. another phone call was
placed from Vespe’s New Jersey offices to Remedio in
Delaware, (PX 3) with Shaffer making the call to Reme-
dio. (Tr. 159). In the course of this conversation, Shaffer
wanted to know why he had not received the $10,000 check
as he had previously demanded and stated that the matter
was out of Vespe’s hands (Tr. 159-160, TT II. p. 1).
Shaffer told Remedio he had to be more careful in driving
as he had gone through a stop sign at Concord Avenue in
18a
Wilmington and Vespe would never get his money (TT
IL., pp. 1-2)’ Shaffer said that he was in Vespe’s office
at the time of the call (TT II., p. 4), that he expected a
check to be mailed to him that day or he would come
pick it up (TT IL., pp. 4-5), and that, ‘‘If you ain’t got
it this week, borrow it, sell your wife, your ass, sell your
ear, but get it, Joe. I waited two... years, I ain’t waiting
no more.’’ (TT IL. p. 3). Remedio mailed a check for
$1,000 on July 12, 1974 to Vespe. (PX 2).
On Monday, July 15, at 10:40 A.M. Vespe again tele-
phoned Remedio from Vespe’s New Jersey office (PX 3,
Tr. 16-166, TT III). Vespe indicated he had received the
check sent by Remedio and that he was going to hold it
pending a meeting to be set up between Remedio and him-
self (Tr. 165-166, TT III., p. 1). Vespe was apparently
aware of Shaffer’s conversation with Remedio on July 12,
because when Remedio indicated to Vespe that Shaffer
had called him after he had talked to Vespe, Vespe re-
plied, ‘‘ Alright, well things are, I think things are calmed
down now.’ (TT IIL, p. 1). Vespe made this statement
even before Remedio explained the ‘‘maniac”’ behavior of
Shaffer (TT IIL, p. 1). Vespe set up a meeting with
Remedio in his office in Wilmington for Wednesday, July
17, the hour to be set later by Remedio (TT IIL. p. 14,
Tr. 167). About noon on Thursday, July 17, Remedio
called Vespe and the meeting was set for that evening
(Tr. 167-168).
Vespe arrived at Remedio’s office at about 7:15 or 7:30
P.M. (Tr. 168). Detective Landon testified that the chauf-
feur-driven limousine in which Vespe arrived appeared to
be the same automobile in which Shaffer had arrived at
Remedio’s office a week earlier (Tr. 91-92, 94-96). During
this conference, the disagreements between Vespe and
7In Vespe’s earlier telephone conversation with Remedio he
had referred to the possibility that he would not get his money:
“Tf God forbid, you got into an automobile accident and which
I'd hate to see.”’ (TT L, p. 6).
19a
Remedio regarding the work Vespe had subcontracted to
perform and which Remedio claimed he did not complete
were discussed in detail with Vespe claiming he was owed
a large sum by Remedio (Tr. 169, TT IV).*° In the course
of this conversation, Vespe discussed a lengthy hypotheti-
cal in which he hypothesized a situation in which, if he
were a contractor approached by a mob controlled com-
pany that indicated he owed them a substantial sum of
money, and his altenatives were to pay or be shot and he
knew he owed the money, he would pay the sum claimed
(TT IV., pp. 33-34). In addition, Vespe at times reinforced
Remedio’s impression of how dangerous Shaffer was while
in the same conversation stating he did not like and did
not condone violence. For example, the following took
place at one point (TT IV., p. 43):
Vespe: I’m sure, Joe, that you’ve checked the
guy’s, ah....
Remedio: You’re goddamn right I checked.
Daniel Remedio: We know all about him.
Vespe: I’m sure that you know the guy’s been
indicted, what, eleven times for murder.
Remedio: I don’t know about that. Eleven times
for murder?
Vespe: Eleven times. That’s what they say.
Remedio wanted the New Jersey court to decide the dis-
pute and did not want Shaffer involved; Vespe appeared
to agree to this resolution (Tr. 171-172).
Nothing more was heard of the matter until Monday,
July 22, at 10:48 A.M. when Shaffer telephoned Remedio
in Wilmington from Vespe’s office (PX 3, Tr. 172, TT V).
In this conversation, Shaffer asked Remedio why he had
8In addition to Vespe and Remedio at the July 17 meeting
was Daniel Remedio, Remedio’s brother. (Tr. 167, 171).
20a
not received another check from Remedio (Tr. 172, TT V.,
p. 1. When Remedio tried to tell Shaffer that he and
Vespe had resolved the matter and were to proceed with
the New Jersey court action, Shaffer became belligerent
and in no uncertain terms indicated his displeasure at any
possible resolution other than his understanding that
Remedio was going to pay $60,000 (Tr. 172, TT V., p. 1).
Shaffer also indicated that Vespe was no longer involved
in the collection of the debt, and to show Remedio that
Vespe had turned the collection matter over to the control
of Shaffer, Shaffer had Vespe get on a phone extension
and the following dialogue occurred (Tr. 172, TT V., pp.
2-3) :
Shaffer: He’s gonna call ya and tell ya, wait a
minute, hold on, is Basil in the office? Is Basil up-
stairs? Would ya ring him? What lines he on? Yeah,
I’m on 28. Yes.
Vespe: Hello.
Shaffer: Basil?
Vespe: Yeah.
Shaffer: Yeah you’re on the same line the three
of us with Joe, Joe Remedio, now now I want you
to say once and for all. I told you not to go to Dela-
ware. You went to Delaware, okay. Now you come
back and cut it down to $60,000. Now Joe, you hear
me?
Remedio: I’m listening.
Shaffer: Alright, Basil, stay the fuck out of my
business with Joe Remedio.
Remedio: Now, Basil, he says it’s his business
again.
Vespe: Right.
Remedio: Now.
2la
Vespe: You got it Monk.
Remedio: Huh?
Shaffer: You hear the man on the phone?
Vespe: You got it.
Special Agent Andrew M. Palumbo of the FBI inter-
viewed Vespe on July 2, 1974 following his arrest in this
case (Tr. 34-36). Palumbo testified that Vespe indicated
to him that he knew Shaffer and had known him a num-
ber of years (Tr. 38). Vespe also stated that Shaffer had
told Vespe that Shaffer knew Remedio, and that Shaffer
had traveled to Wilmington, Delaware to meet with Reme-
dio in order to discuss arrangements through which Reme-
dio would pay Vespe funds Vespe claimed were owed by
Remedio (Tr. 39). Vespe stated specifically he had sent
Shaffer for the purpose of collecting $87,000, and that
Shaffer had authority to collect the $87,000 (Tr. 40). In
addition, Vespe showed to Palumbo a cover letter and an
original $1,000 check made payable to Vespe’s company
drawn on Remedio’s construction company in Wilmington
(Tr. 41-43; PX 2). Vespe testified that in January of 1974
he learned that Shaffer was in the accounts receivable
business. Vespe did not know the name of the business,
nor whether there were any offices from which Shaffer
operated. He did not know whether anyone worked for
Shaffer in connection with his business (Tr. 486-487).
Vespe also testified that in January or February of
1974, he decided to employ Shaffer to assist in collecting
Vespe’s accounts receivables (Tr. 488). Vespe stated that
he made no attempt at that time to contact any other firm
prior to employing the services of Shaffer (Tr. 490). Ac-
cording to Vespe, most accounts receivable firms work on
a percentage basis, but Shaffer was only to be paid if
Vespe was satisfied with the amount that he received
from those whom he claimed owed him money (Tr. 492).
Vespe stated that Shaffer would receive $2,500 per satis-
22a
factory settlement (Tr. 493-494), but that Shaffer never
received any funds whatsoever because a satisfactory set-
tlement was never reached on any account with which
Shaffer had been involved (Tr. 494). In fact, Vespe indi-
cated that the only instance in which he was aware that
Shaffer had been involved in any way in trying to collect
an outstanding claim on behalf of Vespe’s business was
with Remedio (Tr. 495). In addition, Vespe stated that
Shaffer helped around the office by answering the tele-
phone and also carried cash payrolls to job sites because
he had a license to carry a gun (Tr. 498-499). Yet, Vespe
did not pay Shaffer for any of these last mentioned
services (Tr. 499-500). Vespe also indicated that Shaffer
had no ability as an accountant (Tr. 528-529), and that
he must have discussed Shaffer’s visiting Remedio some
time prior to Shaffer’s visit to Delaware on July 10 and
perhaps somewhat earlier (Tr. 531-532). Furthermore,
Vespe admitted that he had spoken with Shaffer after
July 10, and that Shaffer had told him of the presence
of two police officers in Remedio’s office (Tr. 536).
The evidence summarized above and the reasonable in-
ferences arising therefrom provide an ample basis for the
jury to rationally infere that Vespe and Shaffer willfully
and knowingly conspired and agreed with each other to
violate 18 U.S.C. § 1952(a)(3) by (a) traveling in inter-
state commerce between New Jersey and Delaware and
(b) by using and causing to be used interstate telephone
facilities with the intent to carry on the unlawful activity
of extortion, viz., the obtaining of money from Remedio
through threats of physical injury in violation of 11 Del.
C. § 846(1) and (2) and without awaiting the outcome of
litigation between Vespe and Remedio pending in the New
Jersey state court.
It is quite clear that Vespe had no confidence of suc-
cessfully recovering a judgment on his disputed claim
against Remedio in the New Jersey state court litigation.
He therefore retained the assistance of Shaffer, a man
23a
known to him to be dangerous, in order to force Reme-
dio by threats of bodily harm to himself and his family
to pay the large sums demanded. The interplay between
Shaffer, the heavy-handed ‘‘gorilla’’ and ‘‘bad hombre’’
(TT V., p. 4, TT L, p. 9, Tr. 199, 246) and Vespe, the
reasonable man who disliked violence, upon Remedio’s
will and nerves was too highly attuned and orchestrated
both in timing and content of conversations not to have
been agreed upon in advance. Vespe played upon Reme-
dio’s fear of Shaffer and reinforced it in every conversa-
tion. The enmeshing of the actions and conversations of
Shaffer and Vespe with Remedio could have occurred only
through full discussion and close cooperation between them
in proceeding upon an overall scheme and plan to force
Remedio to pay a substantial sum of money on a highly
disputed claim which Vespe did not believe was legally
collectable through pending court litigation. Therefore the
defendant’s motion for judgment of acquittal on the
ground that there was insufficient evidence to show the
existence of an agreement between Shaffer and Vespe to
extort money from Remedio through threats of bodily in-
jury will be denied.
B. Defendant’s Conduct Was Not Within the Purpose of
18 U.S.C. § 1952.
Defendant’s second ground for judgment of acquittal is
based on the argument that 18 U.S.C. 8 1952 was intended
exclusively to curtail unlawful activities of organized
crime, and that, since no connection between the defend-
ant and organized crime was either alleged or proved, de-
fendant’s conduct is not within the intendment of the Act.
This argument is without merit. While it is true ‘‘that
§ 1952 was aimed primarily at organized crime,’’ Rewis
v. United States, 401 U.S. 808, 811 (1971), its chief focus
is upon the use of the facilities of interstate commerce
with the intent of furthering unlawful activities. ‘‘It is,
in short, an effort to deny individuals who act for sucha
criminal purpose access to the channels of commerce.’’
24a
Erlenbaugh v. United States, 409 U.S. 239, 246 (1972).
In disposing of a similar argument advanced in United
States v. Roselli, 432 F.2d 879, 885 (C.A. 9, 1970) cert. den.
401 U.S. 924 (1971), reh. den. 402 U.S. 924, the Court
stated:
‘The words of section 1952 are general; they contain
no restriction to particular persons or to particular
kinds of gambling, liquor, narcotics, and prostitution
offenses.
‘The reasons seem self-evident. It would usually be
difficult, if not impossible, to prove that an individual
or business was associated with or controlled by a
clandestine criminal organization. It might also be dif-
ficult to prove that a particular offense was of the
kind commonly engaged in by organized criminals in
1961; and, in any event, such restriction upon the
statute’s coverage would provide an easy avenue for
evasion through adoption of new forms and tech-
niques of illicit trafficking. Nothing in the legislative
history suggests that Congress intended prosecutors
and courts to read into the Act such highly restric-
tive and administratively impractical exclusionary
provisions. On the contrary, as we read the legislative
record, Congress meant exactly what the language of
section 192 states—it deliberately chose to make the
statute applicable generally, and without crippling re-
strictions, to any person engaged in any kind of illicit
businss enterprise in one of the four fields of activity
specified in the state, which experience showed to be
those in which organized racketeers commonly en-
gaged.’”’
To the same effect is United States v. Colacurcio, 499 F.2d
1401, 1405 (C.A. 9, 1974); United States v. Mahler, 442
F.2d 1172, 1175 (C.A. 9, 1971), cert. den. 404 U.S. 993;
United States v. Isaacs, 347 F. Supp. 743, 753 (N.D.Il
25a
1972). Defendant’s motion based on this ground will be
denied.
II. Motion ror New Triau
The defendant has advanced five different errors al-
legedly committed during the course of the defendant’s
trial, any one of which, defendant contends, entitles him
to a new trial in the interest of justice. These alleged
errors will be discussed seriatim.
A. Court’s Instruction to Jury Relating to Conspiracy
Was Error.
Vespe first contends that the Court in ruling upon the
admission of out-of-court statements of Shaffer, in effect,
erroneously instructed the jury that if Shaffer’s out-of-
court statements were not later stricken, that the govern-
ment had sustained its burden of proving that a con-
spiracy existed between Vespe and Shaffer.
It is the general rule, as well as the rule of this Circuit,
that the existence of a conspiracy and the defendant’s
connection therewith must be proved prima facie to the
satisfaction of the Court before the declarations of one
conspirator made in defendant’s absence can be admitted
against a conspirator defendant. United States v. DeLazo,
497 F.2d 1168, 1170 (C.A. 3, 1974). But declarations of one
co-conspirator may be received at any time during the
course of a trial subject to subsequent proof of the exist-
ence of the conspiracy and the connection of the defendant
therewith. Esco Corporation v. United States, 340 F.2d
1000, 1008-9 (C.A. 9, 1965) ; United States v. Sansone, 231
F.2d 887, 893 (C.A. 2, 1956), cert. den. 351 U.S. 987.
During the early part of the trial when Remedio began
to testify of statements made by the deceased Shaffer, the
alleged co-conspirator of Vespe, Vespe’s counsel objected
to Shaffer’s statements on the ground that before Shaffer’s
statements that were made out of Vespe’s presence could
26a
be admitted and used against Vespe there had to be a
showing to the Court that a conspiracy existed and that the
defendant was connected therewith (Tr. 117-118). Argu-
ment was heard on the objection out of the presence of
the jury (Tr. 117-119). While the Court was troubled with
the prosecution’s order of proof, it stated and warned the
government while the jury was out as follows (Tr. 119-
120):
‘*Well, the trouble I have, Mr. Thall—and you know
that the general rule is that the existence of a con-
spiracy and the defendant’s connection therewith must
be proved at least prima facie to the satisfaction of
the Court by creditable, independent evidence before
declarations of one conspirator made in the defend-
ant’s absence can be received against the defendant.
‘*Now, I will admit that if independent facts and infer-
ences drawn therefrom satisfy the Court that there
was a ]'kelihood of an illicit association, those declara-
tions can be admitted, even though it may later even-
tuate that the independent evidence proves to be in-
sufficient to justify submitting to the ju.y the question
of the defendant’s alleged guilty involvement with the
declarant.”’
After this warning, the prosecutor made a plea in the
interest of a clear presentation of the evidence to the jury
that it should be unveiled in chronological order. The Court
then replied (Tr. 121):
‘*Well, you are running a risk, and I am going to admit
this evidence, but subject to being stricken and what-
ever else that I may do.’’
Upon the return of the jury to the courtroom, the Court
warned the jury of the receipt of this evidence as follows
(Tr. 121-122):
27a
‘*Now, members of the jury: This is a conspiracy case
and what has just been testified to is an alleged state-
ment by a co-conspirator, Shaffer. You may not take
into consideration—I have permitted this evidence to
be admitted, subject to being stricken later if it is not
proven by the Government that here was a conspiracy
existed between Mr. Vespe and Mr. Shaffer. If there
was a conspiracy and that is proven by independent
evidence, aside from any declarations made by Shaf-
fer, then you may consider that evidence. But you
cannot consider the evidence until the Government has
proven that there was actually a conspiracy between
Shaffer and Vespe, because a declaration of Shaffer
could not be held against Vespe under the rules of evi-
dence in a court of law in the United States.
‘*So I have admitted this evidence as to the declarations
by Shaffer subject to the Government’s proof that
there was a conspiracy in existence between Shaffer
and Vespe.
** All right. With that warning, keep in mind what this
evidence is.’’
At the time of admitting Shaffer’s declarations subject
to subsequent independent proof of the existence of the
conspiracy and defendant’s therewith in order to permit
the evidence to be presented in chronological order, the
Court was simply warning the jury that they could not
consider such evidence until and unless they found a con-
spiracy to exist between Shaffer and Vespe. This was well
within the trial Court’s discretion. United States v. Bey,
437 F.2d 788, 190-191 (C.A. 3, 1971); Parente v. United
States, 249 F.2d 752, 754 (C.A. 9, 1957).
At the beginning of the third day of trial, before the
jury entered the courtroom, the Court formalized its prior
ruling (Tr. 119-121) by stating (Tr. 201-202) :
28a
‘‘At the time the Government offered the declarations
and statements of Mr. Shaffer through the testimony
of Mr. Remedio and thereafter when Mr. Shaffer’s
statements on tapes which were recorded on July 12
and 22 were offered in evidence in this case, I admitted
those statements subject to a motion to strike unless
the Government proved prima facie through independ-
ent evidence the existence of a conspiracy and defend-
ant’s connection therewith.
‘‘Now having heard the testimony of the Government’s
witnesses and Mr. Vespe’s statements and conversa-
tions with Mr. Remedio contained on the tapes of July
12, July 15 and July 17 of 1974, the Court is now
satisfied, upon viewing such evidence in total perspec-
tive and the reasonable inferences arising therefrom,
that there has been a prima facie showing and a reason-
able likelihood of an illicit association between Mr.
Vespe and Mr. Shaffer, to the extent that Mr. Shaffer’s
declarations made in defendant’s absence were prop-
erly received in evidnce against the defendant, and
that those statements will not be stricken from the
record.
‘*Now, that is only the question as to the admissibiliy
which I left in some doubt at the time that I made my
initial ruling, and I am making this out of the hearing
of the jury, of course.’’ ®
It should be noted that included in the preliminary in-
structions (Tr. 11-14) given to the jury at the beginning
of the case was the warning: ‘‘ After this case has been
® This ruling was in line with the holdings in United States v.
Pordum, 451 F.2d 1015, 1017 (C.A. 2, 1971), cert. den. 405 U.S.
998 (1972); United States v. Geaney, 417 F.2d 1116, 1120 (C.A.
2, 1969), cert. den. 397 U.S. 1028 (1970) ; Carbo v. United States,
314 F.2d 718, 735-737 (C.A. 9, 1963), cert. den. 377 U.S. 953
(1964), reh. den. 377 U.S. 1010.
29a
submitted to you, you must discuss the case only in the
jury room when all members of the jury are present. You
are to keep an open mind and you must not decide any issue
in this case until the case is submitted to you for your
deliberation under the instructions of the Court.’’ (Tr.
14).
At the close of the trial, the Court gave lengthy and
detailed final instructions to the jury regarding the nature
of the conspiracy law, the manner in which it related to
the instant case, and the essential elements of the con-
spiracy charged with the government was required to prove
beyond a reasonable doubt (Tr. 734-758). With respect
to the statements of a co-conspirator, the Court specifically
instructed the jury as follows (Tr. 743):
‘*TIn determining whether a conspiracy existed, the jury
should consider the actions and declarations of all of
the alleged participants. However, in determining
whether a particular defendant was a member of the
conspiracy, if any, the jury should consider only his
acts and statements. He cannot be bound by the acts
or declarations of other participants until it is estab-
lished that a conspiracy existed, and that he was one
of its members.”’
In addition, the Court further instructed (Tr. 747-748) :
‘*Whenever it appears beyond a reasonable doubt from
the evidence in the case that a conspiracy existed, and
that a defendant was one of its members, then the
statements thereafter knowingly made and the acts
thereafter knowingly done, by any person likewise
found to be a member, may be considered by the jury
as evidence in the case as to the defendant found to
have been a member, even though the statements and
acts may have occurred in the absence and without the
knowledge of the defendant, provided such statements
and acts were knowingly made and done during the
continuance of such conspiracy and in furtherance of
some object or purpose of the conspiracy.
30a
‘‘Otherwise, any admission or incriminatory statement
made or act done outside of court, by one person, may
not be considered as evidence any person, who was not
present and who did not hear the statement made, or
see the act done.
‘‘Therefore, statements of any conspirator, which are
not in furtherance of the conspiracy, or made before its
existence, or after its termination, may be considered
as evidence only against the person who made them.”’
It is inconceivable that the jury was in any way con-
fused by the warning given on the second day of trial re-
garding the conditional admission of evidence of Shaffer’s
declarations upon completion of the final instructions that
were given just before the jury commenced its delibera-
tions. Furthermore, the defendant has completely misin-
terpreted the warning given. The clear import of the warn-
ing was that Shaffer’s statements were being admitted
subject to proof by the government of the existence of the
conspiracy and that until this was proved, Shaffer’s state-
ments could not be held against Vespe. The Court was re-
quired to make a finding at some point that a sufficient
prima facie showing had been made as to the existence of
a conspiracy aliunde of the challenged declarations to war-
rant consideration of such declarations by the jury. This
is exactly what the trial Court did. Rizzo v. United States,
304 F.2d 810, 826-827 (C.A. 8, 1962), cert. den. 371 U.S.
890. The Court finds no merit to defendant’s first reason
for a new trial.
B. Error In Admitting Tape Recordings into Evidence.
As a second ground for granting a new trial, the defend-
ant contends that it was error to admit into evidence the
electronically taped telephone conversations which oc-
curred between Vespe and Remedio, and Shaffer and Rem-
edio because the recording of such conversations violated
3la
Delaware state law. It is claimed that 11 Del. C. § 1335(4) *°
prohibits the interception of a telephone conversation un-
less the interception is made with the consent of both par-
ties to the conversation, citing Commonwealth v. Murray,
423 Pa. 37, 223 A.2d 102 (1966). The defendant argues that
the Delaware statute was patterned after the Pennsylvania
statute construed in Murray and thus it is a valid precept
of statutory construction that copying a statute of another
state carries with it the adoption of the interpretations of
the statute of the state from which it was adopted.
The Court finds no merit to this argument. First, the
Murray case was distinguished in a later Pennsylvania
case, Commonwealth v. Goldberg, 208 Pa. Super. 513, 224
A.2d 91 (1966), on the ground that Murray did not involve
the interception by a subscriber on his own line. The Gold-
berg court held that a subscriber had a ‘‘ paramount right’’
to make interception on his own telephone line. Remedio’s
interception in this case comes within the Goldberg rather
than the Murray rule even if the Pennsylvania cases ap-
plied to the Delaware statute. Secondly, the Court is un-
convinced that the Delaware statute was copied from the
Pennsylvania Act. The language of the two statutes is
quite different and more importantly the commentary on
§ 1335 by the drafters of the Delaware Criminal Code
stated: ‘‘Unauthorized wiretapping is contrary to federal
law, but it is right that State law should also be on rec-
ord against it.’’ Del. Crim. Code with Commentary, 1973,
p. 404. This statement suggests that the drafters of the
Delaware statute were attempting to emulate the federal
law, 57 U.S.C. § 605, which, of course, does not prohibit
the recording of telephone conversations made with the
consent of one party. United States v. Littman, 421 F.2d
011 Del. C. § 1335 provides in part: ‘‘A person is guilty of
violation of privacy when, except as authorized by law, he .. .
(&) Intercepts without the consent of all parties thereto a
message by telephone . . . including private conversations.’’
32a
981, 983 (C.A. 2, 1970), cert. den. 400 U.S. 991 (1971);
United States v. Kaufer, 406 F.2d 550, 552 (C.A. 2, 1969),
aff’d 394 U.S. 458, reh. den. 395 U.S. 917; Harris v. United
States, 400 F.2d 264, 267 (C.A. 5, 1968); Dryden v. United
States, 391 F.2d 214, 215 (C.A. 5, 1968); Parkhurst v.
Kling, 249 F.Supp. 315, 316 (E.D.Pa. 1965), reconsidered
266 F.Supp. 780 (1967).
Despite all this, however, even if Delaware law were
considered to have been violated, this fact would not render
the taped recordings inadmissible in a federal criminal
trial because federal and not state law provides the stand-
ard governing admissibility of evidence in a federal court.
United States v. Johnson, 484 F.2d 165, 168 (C.A. 9, 1973),
cert. den. 414 U.S. 1112; United States v. Escobedo, 430
F.2d 603, 607 (C.A. 7, 1970), cert. den. 402 U.S. 951 (1971) ;
United States v. Teller, 412 F.2d 374, 377 (C.A. 7, 1969),
cert. den. 402 U.S. 949 (1971); United States v. Krol, 374
F.2d 776, 778 (C.A. 7, 1967), cert. den. 389 U.S. 835; United
States v. Jones, 369 F.2d 217, 220 (C.A. 7, 1966), cert. den.
386 U.S. 944 (1917); United States v. McGuire, 381 F.2d
306, 215 (C.A. 2, 1967), cert. den. 389 U.S. 1053 (1968) ;
Ferguson v. United States, 307 F.2d 787, 789-790 (C.A. 10,
1962), opinion withdrawn and new trial granted on other
grounds, 329 F.2d 923 (C.A. 10, 1964). Defendant’s motion
for a new trial based on its second ground will be denied.
C. Admission of Co-conspirator’s Hearsay Statements
Violated Defendant’s Sixth Amendment Right to Con-
front Witness.
Defendant’s third ground for urging a new trial is that
this Court erred in permitting Remedio to testify as to the
content of Shaffer’s unrecorded telephone threats made to
Remedio on July 4 Tr. 116-117) and July 12, 1974 (Tr.
129-134). The defendant argues that without this hearsay
testimony the government could not prove that Remedio
was instilled with the fear necessary to prove extortion as
defined in 11 Del. C. § 846, and because this hearsay evi-
33a
dence was crucial to the government and devastating to
the defendant, its admission violated Vespe’s Sixth Amend-
ment right to confront Shaffer. There is no merit to this
contention.
Shaffer was an indicted co-conspirator with Vespe. He
was shot to death after indictment but before trial. As
set forth in detail under Point I of this opinion, there was
ample evidence, putting aside the hearsay in question as
required by Glasser v. United States, 315 U.S. 60, 74-75
(1942), from which the jury could find not only the exist-
ence of a conspiracy but also that Remedio was in mortal
fear of bodily irfjury to himself and his family. For exam-
ple, this fear is shown not only in the recorded conversa-
tions between himself, Vespe and Shaffer which took place
on July 12, 15 and 22 but is also confirmed by the testi-
mony of the police officers who interviewed Remedio (Tr.
72-74, 83) and by the fact that Remedio expended over
$1,900 weekly to ensure off-duty police protection for him-
self and family. This corroborating evidence of Remedio’s
fear of physical injury affords sufficient ‘‘indicia of re-
liability’’ of Shaffer’s hearsay threats to permit their
admission in evidence. This is particularly so because the
record is clear that the defendant was afforded full oppor-
tunity to cross-examine Remedio who testified to the dead
co-conspirator’s threats and also because Shaffer’s threat-
ening statements when uttered were admissions against his
penal interest.
Finally, Vespe’s contention that admitting into evidence
Shaffer’s threats through Remedio’s testimony violated
Vespe’s Sixth Amendment right to confront Shaffer is also
without merit. This argument and contention in a case
factually similar to the present case was soundly and com-
pletely rejected by Judge Adam’s excellent and explicit
opinion in United States v. Weber, 437 F.2d 327, 336-340
(C.A. 3, 1970), cert. den. 402 U.S. 932 (1971). In view of
the Third Circuit opinion this Court can add nothing fur-
ther in rejecting defendant’s third ground for a new trial.
34a
D. Prosecutor’s Prejudicial Conduct.
During the first day of trial a subsidiary factual issue
arose as to whether Shaffer arrived at Remedio’s office on
July 10 in the same chauffeur-driven automobile that
Vespe later used in visiting Remedio’s office on July 17.
Detective Patton on direct examination testified that when
he and Officer Landon approached Remedio’s office on July
10, they ‘‘observed a 1974 black Cadillac limousine, with
temporary registration tags, parked outside with a chauf-
feur, with a gentleman in a chauffeur’s uniform behind the
wheel.’’ (Tr. 68). No questions were asked Patton during
cross-examination regarding this testimony. The next wit-
ness to testify was Detective Landon who stated that upon
arriving at Remedio’s office on July 10, they noticed ‘‘a
black limousine parked in a ‘No Parking’ area, and we
took the tag number down, driven by a chauffeur with a
cap on.’’ (Tr. 78). Landon on direct also indicated that
he had followed Vespe’s automobile from the [Delaware
Memorial] bridge to Remedio’s office on July 17 (Tr. 86).
On cross-examination, Landon stated in response to de-
fense counsel’s questions that Vespe had traveled to Wil-
mington on July 17 in a car that was leased out of Phila-
delphia and that the car had Vespe’s name written on it
(Tr. 90-91). Landon further testified, in response to de-
fense counsel’s questioning, that Shaffer had arrived at
Remedio’s office on July 10 in the same car or one that
looked the same as the one that Vespe arrived in on July
17 (Tr. 91-92). Landon acknowledged that on July 10 the
ear had a temporary Pennsylvania license plate while on
the 17th the automobile had a different license tag (Tr.
92).
On redirect examination, in order to clarify Landon’s
testimony on cross-examination, the following questions
and answers relating to the car were asked and given (Tr.
95-96) :
Se aatpedm ete ata |b re
35a
Q. You have indicated twice on cross examina-
tion,’ Detective Landon, that you think the care were
the same because they had the same name. Could you
explain what you mean ‘‘the same name’’?
A. It was a black car, all black. It had Vespe’s
name wrote on it in red letters.
Q. On the side of the car?
A. Yes. With like a white circle around it.
Q. This was the car you observed with the tem-
porary tags on the 10th as well as the car you ob-
served on the 17th?
A. Yes.
It is clear that Detective Landon based his identifica-
tion of the vehicles on what appeared to him to he Vespe’s
name printed in red letters within a white circle on the
side of the limousine (Tr. 92, 95-96).
Vespe denied that Shaffer was provided with Vespe’s
ear to visit Remedio on July 10 (Tr. 517-519) and Vespe
also testified that only his vehicle and no other company
car had his name lettered on the side (Tr. 519).
From the dispute as to whether Shaffer traveled to Re-
medio’s office in a Vespe car on July 10, the defendant
argues that the prosecutor must have known the vehicles
were of different ownership because the police officers re-
corded the registration number of the chauffeur-driven car
observed at Remedio’s office on July 10 and they must
have checked its ownership. Thus, it is contended on the
authority of Brady v. Maryland, 373 U.S. 83 (1963), that
when the government failed to place this information,
which it must have known, in evidence, it withheld favor-
able evidence from the defense and denied the defendant
a fair trial.
"Tr. 91-92.
36a
The Court finds no merit to this argument. First, this
argument presupposes as proven facts that (1) Detectives
Patton and Landon checked the number of the temporary
license plate with the Pennsylvania authorities to deter-
mine ownership of the vehicle, and (2) that the informa-
tion received as a result of that check showed the car not
to have been owned or leased by Vespe. The present rec-
ord fails to support any such assumptions as to the actions
of the police officers.
Secondly, there appears to have been no refusal to dis-
close or suppression of exculpatory evidence unknown to
the defendant at time of trial. In Brady, supra at 87, the
Supreme Court held ‘‘that the suppression by the prosecu-
tion of evidence favorable to an accused upon request vio-
lates due process where the evidence is material either to
guilt or punishment, irrespective of good faith or bad
faith of the prosecution.’’ In Moore v. Illinois, 408 U.S.
786, 794-5 (1972) reh. den. 409 U.S. 897, the Supreme
Court in explaining Brady stated:
‘*The heart of the holding in Brady is the prosecution’s
suppression of evidence, in the face of a defense pro-
duction request, where the evidence is favorable to the
accused and is material either to guilt or punish-
ment.’’
The underlying rationale of these cases is that an ac-
cused is denied a fair trial when items of favorable or
exculpatory evidence unknown to him at the time of trial
were not produced or were suppressed by the government.
There is nothing in the present record, other than pure
speculation, that the government failed to disclose or sup-
pressed evidence of the ownership of the vehicle observed
by the police officers at Remedio’s office on July 10. More-
over, defense counsel was fully aware on the first day of
trial by the testimony of Detectives Patton and Landon
that they had recorded the temporary license plate of the
ear observed at Remedio’s office on July 10 (Tr. 68, 78).
No follow up of this testimony was undertaken by cross-
37a
examination of Patton. Indeed, wheu Landon was cross-
examined by defense counsel, the following colloquy oc-
curred (Tr. 92):
Q. What was the license number of the car that
came there that Mr. Shaffer was in?
A. It was a Pennsylvania registration. I have it
in my reports, but they are in the back of the room.
The car Mr. Shaffer came in, it was the same car but
had a temporary plate, a white plate, white cardboard
with black lettering.
Q. You mean it was the same car or one that
looked the same?
A. It looked the same.
Q. So it might not have been the same at all?
A. Well, it had the same name on it and it looked
the same to me.
Thus, no request was made to examine the report or per-
mit Landon to obtain his report which was in the court-
room to give the temporary license number even though
defense counsel by his questions hinted the car might not
have been the same.’* There was not the slightest indica-
tion that the government would have objected either to
showing Landon’s report to the defense if it had been re-
quested or to permitting Landon to use it to refresh his
12 Had defense counsel permitted Landon to refer to his report
in order to give the number of the temporary Pennsylvania plate
on the first day of trial, it would have been a simple matter for
the defense to have checked with the Pennsylvania Lcensing
authorities to determine the vehicle’s registered ownership if the
defense believed that to be important. The Supreme Court said in
Moore v. Illinois, supra at 795: ‘‘We know of no constitutional
requirement that the prosecution make a complete and detailed
accounting to the defense of all police investigatory work on a
case.’’
38a
memory of the number of the temporary plate. Under
these circumstances, this is not a Brady type situation
where the existence of possible material evidence is un-
known to the defendant at time of trial and is not dis-
closed by the government. Here the defendant was made
aware that Landon had recorded the temporary plate
number in his report which was present in the courtroom
but failed to request the production of the report and
failed to ask him whether he checked with the Pennsyl-
vania authorities regarding the ownership of the vehicle.
The Court concludes there was no suppression of material
evidence unknown to defendant at trial and that the fail-
ure to pursue the matter, which was fully known to the
defense early in the trial, was a tactical decision of the
defense and was no fault of the government.
The defense has filed a post-trial affidavit of Alfred Di-
Giacomo * (Docket Item 44) which states that he accom-
panied Shaffer to Remedio’s office on July 10 in a 1974
four-door black Cadillac sedan which was driven by Shaf-
fer and not by a chauffeur, that Shaffer had ‘‘picked this
automobile up from the Center City Cadillac Company
a few days before July 10,’’ that the car bore temporary
tags, did not have Vespe’s name printed on it but did have
Shaffer’s initials inscribed on its side. This, of course, is
not newly discovered evidence because with due diligence
it could have been presented at trial and moreover is
simply cumulative of the defense testimony given by Ves-
pe and by Harry Sadler, Vespe’s private chauffeur, who
testified that Vespe’s vehicle was not used by Shaffer to
visit Remedio on July 10 (Tr. 517-519, 627-630). In any
event, this cumulative evidence does not appear to be very
material considering all the other evidence in the case and
it is not of such a nature that it would probably produce
1®Remedio did not at first recognize DiGiacomo when he at-
tended the July 10 meeting with Shaffer but then he was told by
DiGiacomo that he had been on the Millville job as Vespe’s fore-
man (Tr. 125-127).
39a
a different verdict if the case were retried. Defendant’s
motion for a new trial on these grounds will be denied.
E. Court Erred in Refusing To Permit Interviews of the
Jurors After Verdict.
After the return of the verdict finding the defendant
guilty as charged (Tr. 760-761), the jurors were individ-
ually polled upon defendant’s application (Tr. 761-762).
Immediately thereafter, defense counsel made a special
request ‘‘that the jury be polled as to whether they read
or heard anything about this case since the trial started.’’
(Tr. 762). The request was denied and the jury was dis-
missed. The Court denied the request because it was made
after the verdict had been returned and there was nothing
before the Court that would overcome the presumption that
the jury had strictly followed the admonitions and instruc-
tions given each day not to read any publicity about the
ease (Tr. 762-763).
At the beginning of the trial after voir dire of the jury
panel (Tr. 5-10) and after the jury had been drawn and
sworn (Tr. 10-11), the Court gave preliminary instruc-
tions which explained their duties and responsibilities (Tr.
11-14). Among the instructions then given included the
following (Tr. 12, 14):
‘‘The law applicable to this case will be contained in
the instructions I give you during the course of the
trial, and it is your duty to follow all such instruc-
tions.’’
‘Until this case is submitted to you for your delibera-
tion, you must not discuss this case with anyone or
remain within hearing of anyone discussing it. Neith-
er should you read any newspaper article, listen to
any radio broadcast, nor view any television program
which may discuss this case during the trial.
‘‘ After this case has been submitted to you, you must
discuss this case only in the jury room when all mem-
bers of the jury are present. You are to keep an open
40a
mind and yor must not decide any issue in this case
until the case is submitted to you for your delibera-
tion under the instructions of the Court.”’
Because the jury was not sequestered, this admonition
was repeated to the jury on each day of the trial every
time the Court recessed for lunch and at the end of the
trial day (Tr. 47, 101, 164, 200, 272, 384, 449, 516, 590, 664-
665). In the face of these clear and repetitive admonitions
throughout the trial, it could not be presumed that the
jurors had disregarded their duties and violated the in-
structions of the Court particularly when there was no
suggestion of any wrongdoing at the time that the special
request was made immediately after return of the verdict
on October 22, 1974. Opper v. United States, 348 U.S. 84,
95 (1954); United States v. Restaino, 405 F.2d 628, 630
(C.A. 3, 1969); Estes v. United States, 335 F.2d 609, 615
(C.A. 5, 1964), cert. den. 379 U.S. 964 (1965), reh. den.
380 U.S. 926; Rizzo v. United States, 304 F.2d 810, 815
(C.A. 8, 1962), cert. den. 371 U.S. 890.
Under date of December 12, 1974, the Court received
a copy of a letter written by defense counsel to the As-
sistant United States Attorney who prosecuted the case.
This letter advised that defense counsel had retained 4
private investigator to interview the jurors who sat on the
trial of this case for the purpose of demonstrating to the
Court defense counsels’ personal belief that trial publicity
had affected the jury’s verdict (Docket Item 36, EX B,
p. 5). The Court on December 13, 1974 wrote to all counsel
and set forth its concern for such an undertaking and
outlined the risks involved (Docket Item 36, EX B, pp.
3-4). As a result of this correspondence, defense counsel
asked f6r and were granted a conference with the Court at
which all counsel attended on December 17, 1974 (Docket
Item 36, EX B, p. 1; Docket Item 38, p. 2). At the confer-
ence defense counsel stated that they wished to interview
the members of the jury to determine whether they were
influenced by newspaper publicity during the trial, The
4la
Court advised counsel to file a written motion and any
supporting affidavits outlining what was proposed and
what action it desired the Court to take (Docket Item 38,
p. 3). As a consequence, the defendant filed a motion and
supporting affidavit of the defendant (Docket Item 37)
on that day and oral argument was heard on December
18, 1974 (Docket Item 38).
The motion indicates that nine news stories appeared
in the Morning News and Evening Journal papers pub-
lished in Wilmington during the coupse of the trial in
which reference was made to the ‘‘gangland style”’ slay-
ing of defendant’s co-conspirator, Shaffer, a ‘‘reputed
mobster’’ with ‘‘extensive underworld contacts.’’ (Docket
Item 36, EX A). The motion, verified by the defendant,
also stated: ‘‘During the course of the trial, at least one
juror was observed carrying a copy of a newspaper into
the jury box.’’ (Docket Item 36, par. 2). Paragraph 4 of
the motion continues:
**4. Counsel have retained the investigative firm
of John J. Begley Associates to perform the subject
investigation. Counsels’ instructions to the investiga-
tive firm are:
(a) That each juror who is interviewed shall be
notified that there is no compulsion on his part to
discuss the matter with the investigator.
(b) Each juror who elects to cooperate will be
asked whether or not during the course of the trial
he obtained any information about the Defendant
outside the Courtroom dealing with this case.
(c) If the answer to the above question is in
the affirmative, the investigator will then inquire as to
the source of any such information.’’
For the reasons set forth in open court (Docket Item
38, pp. 16-19), the defendant’s motion was rejected and
an order was entered that day denying the defendant
42a
‘‘permission and approval of the Court to interview the
trial jurors in the above captioned case.’’ (Docket Item
37).
Thus, defendant’s final ground for granting a new trial
is based on the Court’s failure to inquire of the jury after
verdict whether they had read the news stories and the
Court’s later refusal to grant the defendant’s private in-
vestigator permission to interview the jurors as sought in
its December 18, 1974 motion.
Upon reconsideration of these matters, the Court re-
affirms its original rulings denying the motions.
It was long the settled rule that counsel’s communica-
tion with jurors after verdict regarding their conduct and
deliberations was frowned upon. The compelling public
policy behind this rule was to keep the jury room inviolate.
The Supreme Court in addressing itself to this point in
McDonald v. Pless, 238 U.S. 264, 267-268 (1911) stated:
‘*But let it once be established that verdicts solemnly
made and publicly returned into court can be attacked
and set aside on the testimony of those who took part
in their publication and all verdicts could be, and many
would be, followed by an inquiry in the hope of dis-
covering something which might invalidate the finding.
Jurors would be harassed and beset by the defeated
party in an effort to secure from them evidence of
facts which might establish misconduct sufficient to set
aside a verdict. If evidence thus secured could be thus
used, the result would be to make what was intended
to be a private deliberation, the constant subject of
publie investigation—to the destruction of all frank-
ness and freedom of discussion and conference.”’
See also Rakes v. United States, 169 F.2d 739, 746 (C.A. 4,
1948), cert. den, 333 U.S. 826; United States v. Schneider-
man, 106 F. Supp. 906, 925-927 (S.D.Cal. 1952). Indeed, the
practice of interviewing a juror after trial as to his state
43a
of mind during trial is specifically disapproved in the
Third Circuit. United States v. Hohn, 198 F.2d 934, 938
(C.A. 3, 1952), cert. den. 344 U.S. 913 (1953) ; United States
v. Provenzano, 240 F.Supp. 393, 411-413 (D.N.J. 1964),
aff’d 353 F.2d 1011, cert. den. 384 U.S. 905 (1966) ; United
States v. El Rancho Adolphus Products, 140 F. Supp. 645,
653 (M.D.Pa. 1956), aff’d 243 F.2d 367, cert. den. 353 U.S.
976 (1957), reh. den. 354 U.S. 927.
It is also persuasive that Delaware attorneys under The
Delaware Lawyers Code of Professional Responsibility,
Vol. 13, Del. Code Ann. (1970 Pocket Part), are advised
in DR 7-108: ‘‘After discharge of the jury from further
consideration of a case with which a lawyer was connected,
the lawyer shall not ask questions of or make comments
to a member of that jury.’’
If every disappointed defendant in a criminal case after
a verdict of conviction is returned could undertake an
investigation to fish around into either the mental attitude
or conduct of jurors in the hope of turning up some mis-
conduct, there would never be a finality to a case. It is as
Justice Holmes wrote in Holt v. United States, 218 U.S.
245, 251 (1910): ‘‘If the mere opportunity for prejudice
or corruption is to raise a presumption that they exist, it
will be hard to maintain jury trial under the conditions of
the present day.’’
Now there is no doubt that there may be extraordinary
circumstances, despite the policy considerations of free-
dom of deliberation, finality of verdict, and avoidance of
jury tampering underlying the protection of the integrity
of the jury system, which may induce a court to inquire
into jurors’ irregularity and misconduct by post-trial in-
terview of the jurors. Mattox v. United States, 146 U.S.
140, 149 (1892); United States v. Kum Seng Seo, 300 F.2d
623 (C.A. 3, 1962); United States v. Kohne, 358 F. Supp.
1046, 1051 (W.D.Pa. 1973) aff’d 485 F.2d 682 (C.A. 3,
1974).
44a
But post-trial interviewing of jurors that tend to harass,
embarrass or frighten them or influence their conduct in
future cases on which they may sit should be permitted
with caution and great care and only upon a showing of
substantial legal reason. Such interviews should never be
granted on mere speculation or assumption of irregularity.
In this case the only reason advanced some seven weeks
after the trial is a statement by the defendant that during
the course of the trial he observed a juror carrying a copy
of a newspaper into the jury box. No one else, including the
Court, noticed any such incident and it is too speculative
to presume even if this were observed by the defendant
whether it was in fact a newspaper, or a local paper at
that, or that it was read by the juror. It can not be assumed
that any of the jurors-failed to heed the Court’s repetitive
warnings. Furthermore, if this incident was observed it
was incumbent upon trial counsel to call this to the Court’s
attention at the time it occurred during trial and not wait
until after verdict. If it had been raised when noticed, the
Court would have had the opportunity to make a full in-
quiry and if necessary to have taken corrective action.
The Court thus concludes that a substantial legal rea-
son has not been shown to require this Court in its dis-
cretion to grant the requested juror interviews after ver-
dict. The Court further concludes that this contention is
but an afterthought on defendant’s part. The motion for
a new trial on these grounds will be denied.
ORDER
For the foregoing reasons, the defendant’s motion for
judgment of acquittal, defendant’s motion for a new trial
(Docket Item 40) and defendant’s motion for an evi-
dantiary hearing (Docket Item 46) are hereby denied.
Dated: January 31, 1975.
/s/ James L. Latcnum
James L. Latchum
Chief Judge
45a
Memorandum Opinion And Order Of The District Court
(Dated September 23, 1974)
Crim. A. No. 74-71
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Unirtep States or America, Plaintiff,
vs.
ALBERT Martin SHAFFER, JR., aka ‘‘ Monxk’’
and Basti Vesper, Defendants.
Latcuvum, Chief Judge.
Defendants Albert Martin Shaffer, Jr., also known as
‘*Monk,’’ and Basil Vespe have moved to dismiss’ a four
count indictment that was returned against them on Aug-
ust 6, 1974, charging a violation of 18 U.S.C. § 1952(a)
(3) ? and of 18 U.S.C. § 371.° The first count charges Shaf-
1 Shaffer’s motion to dismiss was timely filed under this Court’s
Rule 50(b) Plan. See, 3(a)(2) on August 12, 1974 and was
briefed and argued on September 12, 1974. Vespe’s motion was
untimely filed on September 12, 1974 and ordinarily would have
been barred from consideration, yet since it is identical to Shaffer’s
motion, the Court will consider both motions in this opinion.
218 U.S.C. § 1952(a) (3) states, in relevant part:
‘*(a) Whoever travels in interstate . . . commerce or
uses any facility in interestate . . . commerce. . . . with
intent to—
> * * * *
(3) otherwise promote, manage, establish, carry on or
facilitate the promotion, management, establishment, or carry-
ing on of any unlawful activity, and thereafter performs or
46a
fer with traveling in interstate commerce on or about July
10, 1974, in violation of 18 U.S.C. § 1952(a)(3).* The sec-
ond and third counts charge Shaffer with using a facility
in interstate commerce, viz., a telephone, on or about July
12, 1974 and July 22, 1974, respectively, in violation of 18
U.S.C. § 1952(a)(3). The fourth count charges both Shaf-
fer and Vespe with willfully and knowingly conspiring to
violate 18 U.3.C. § 1952(a)(3), in violation of 18 U.S.C.
§ 371.° This Court is asked to dismiss the indictment under
Rule 7(c), F.R.Crim.P., on the ground that it fails to suffi-
ciently charge any offense.
attempts to perform any of the acts specified in subparagraph
= ey.’
(b) As used in this section, unlawful activity means
.. . (2) extortion .. . in violation of the laws of the
State in which committed or of the United States.’’
*The alleged ‘‘unlawful activity’’ was extortion, to-wit, ob-
taining monies from JOSEPH REMEDIO through threats of
physical injury and property damage, in violation of 11 Del.Code
§ 846(1) and (2)... .”’
11 Del.Code § 846(1) and (2), state:
‘‘A person commits extortion when, with the intent [to deprive
another person of his property or to appropriate it] he compels
or induces another person to deliver property to himself or to
a 3rd person by means of instilling in him a fear that, if the
property is not so delivered, the defendant or another will:
(1) Cause physical injury to anyone; or
(2) Cause damage to property; ...”’
>Count IV charges that from on or about July 3, 1974, up
to and including July 22, 1974, the defendants willfully and
knowingly conspired with one another to travel in interstate
commerce to obtain monies from Joseph Remedio through threats
of physical injury and property damage, in violation of 11 Del.
Code §§ 846(1) and (2) and to use a facility in interstate com-
merce, that is a telephone, for the same purpose. The performance
of eight overt acts in furtherance of the conspiracy is also
alleged.
47a
[1-3] An indictment is constitutionally defective if it
does not ‘‘contain the elements of the offense intended to
be charged, . . . sufficiently apprise the defendant of what
he must be prepared to meet, and, in case any other pro-
ceedings are taken against him for a similar offense, . . .
show with accuracy to what extent he may plead a former
acquittal or conviction.’’ Hagner v. United States, 285
U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932). Rule
7(¢) is intended to implement these constitutional stand-
ards. United States v. American Oil Co., 249 F.Supp. 799,
807 (D.N.J.1966); Cf. Russell v. United States, 369 U.S.
749, 760-64, 82 S.Ct. 1938, 8 L.Ed.2d 240 (1962). Prior
courts, when confronted with the issue of the sufficiency
of an indictment charging a substantive offense arising
under 18 U.S.C. § 1952(a)(3), have held that the essential
element of the crime is traveling in interstate commerce,
or the use of a facility of interstate commerce with the in-
tent to facilitate the performance or attempt to perform
a state crime, and, consequently, that the alleged ‘‘per-
formance thereafter’? need not be stated with the same
specificity. United States v. Teemer, 214 F.Supp. 952, 956-
57 (N.D.W.Va.1963); United States v. Nichols, 421 F.2d
570, 573-74 (C.A. 8, 1970). In light of this authority, de-
fendants’ contention that Counts I, II and III are void
because they do not state ‘‘the alleged illegal activities,
the language of the threats, and the sum or sums sought
to be extorted,’’ is without merit.®
[4-6] Defendants also object to Count IV on the gen-
eral ground that it ‘‘fails to properly charge an offense.’’
An indictment charging a conspiracy is sufficient if it al-
leges an agreement, and identifies both the object towards
which the agreement is directed and an overt act. United
*It is noted that on or about September 12, 1974 the Assistant
United States Attorney voluntarily turned over to the attorneys
for the defendants the taped telephone recordings allegedly con-
taining some of the extortion threats.
48a
States v. Borland, 309 F.Supp. 280, 286 (D.Del.1970).’
Since the fourth count manifestly contains these three ele-
ments, defendants’ objection is without merit. According-
ly, the defendants’ motions will be denied.
ORDER
For the reasons stated above, it is ordered that the de-
fendants’ motions to dismiss are hereby denied.
‘Although it is not necessary that the indictment state the
object of the agreement with the detail required of an indictment
charging the substantive offense, 7d., Count IV incorporates ver-
batim the wording of the three substantive counts of the present
indictment.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.