# Petition — Vespe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1184%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 423 U.S. 1051 ## Text 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1184%3A1. Public record. Not legal advice.