Petition — Pacelli v. United States

In the

Supreme Court of the United States

OCTOBER TERM, 1975

J:

jen A

No.

VINCENT PACELLI, JR.,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STEVEN B. DUKE

127 Wall Street

New Haven, Conn.

Counsel for Petitioner

Vv

ceed 1 de \ ieee

*

¢,

CONTENTS

Page

I i ee oi al re ee eee ne ee ee ees l

I i560 nn neni ce nowds center esses 2

IS IS Pe OO Ee ee re 2

Reasons for granting the writ .............-200-00- 9

Pe eee Tee ce cape webee shank aes 17

Appendix A (order denying rehearing) ............... 18

Appendix B (opinion of Court of Appeals) ........... 19

STATUTES

18 United States Code, Section 241 ................. 2

18 United States Code, Section 1503 ................ 3

CASES

Carrado v. United States, 210 F. 2d 712

a ie fe ess eae sce cee eeee 10

Chambers v. Mississippi, 410 U.S. 284 (1973) ......... 15

Ellarson v. Ellarson, 198 App. Div. 103, 190

gy le = nae 8 ae een aa 14

Giles v. Maryland, 386 U.S. 66 (1967) ............... 13

Glasser v. United States, 315 U.S. 60 (1942) .......... 10

Hansford v. United States, 365 F. 2d 920

aR ear ee ee 11,12

Offut v. United States, 348 U.S. 11 (1954) ........... 17

People v. Hayes, 325 N.Y.S. 2d 815 (1971) ........... 10

State v. Butler, 27 N.J. 560, 143 A. 2d 530 (1958) .. 10, 11

State v. Pryor, 74 Wash. 121, 132 P. 874 (1913) ....... 14

Taborsky v. State, 95 A. 2d 59 (Conn. 1953).......... 13

Taborsky v. State, 116 A. 2d 433 (Conn. 1955)........ 8

United States v. Baird, 414 F. 2d 700 (2d Cir. 1969) .... 10

United Siates v. Benn, 476 F. 2d 1127 (D.C. Cir. 1973) . 10

United States v. Butler, 481 F. 2d 531

CEs pc deue eke daseee ds wos 10, 11, 16

United States v. Crosby, 462 F. 2d 1201

a a, DED a on 664 buen s Maaeeedenedeus 12, 16

United States v. Hiss, 88 F. Supp. 559 (SDNY 1950),

affd. 185 F. 2d 822 (2d Cir. 1950), cert. den.

ar err ee re eee 13

United States v. Levy, 449 F. 2d 769 (2d Cir. 1971) .... 8

United States v. Partin, 493 F. 2d 750

SE, CE roe nk ne eee sk ekkab aces 13,16

United States v. Persico, 305 F. 2d 534 (2d Cir. 1962) .. 10

United States v. Weiser, 428 F. 2d 932 (2d Cir. 1969) ... 8

Washington v. Texas, 388 U.S. 14 (1967).......... 13,15

Webb v. Texas, 469 US. 9S (IDFA) .. wc ccccccccccces 15

OTHER

American Handbook of Psychiatry (Arieta, ed. 1959) ... 14

Coane, SP Tae &. 5. Boe Gee 6 coe becescsvcee’s 11

Page

Conrad, Mental Examination of Witnesses, 11 Syracuse

i ny ins eee euh eens ee tieeeeeee 11

Davidson, Testimonial Capacity, 39 B.U.L. Rev. 172

RE waGA Ge ee dss NG haNeeeeKeuyasteseares 14

McCormick, Evidence § 45 (2d ed. 1970) ............ 13

McLaughlin, Cocaine: The History and Regulation of a

Dangerous Drug, 58 Cornell L.Q. 537 (1973)....... 11

Redlich and Freedman, Theory and Practice of

as ected h baa s dene beccn sees 14

Slovenko, Witness, Psychiatry and the Credibility of

Testimony, 19 U. Fla. L. Rev. 330 (1958) ......... 11

Weihofen, Testimonial Competence and Credibility, 34

8 GU OR hr 11, 14

2 Wigmore, Evidence § 495 (3d ed. 1940) ............ 13

3 Wigmore, Evidence § 924(a) (3d ed. 1940).......... 11

iil

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

VINCENT PACELLI, JR.,

Petitioner

UNITED STATES OF AMERICA,

| Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Vincent Pacilli, Jr., respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit en-

tered in this proceeding on July 24, 1975.

OPINION BELOW

The opinion of the Court of Appeals is reported at 521

F. 2d 135. A copy appears as Appendix B herein.

JURISDICTION

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on July 24, 1975. A timely petition for

1

rehearing was denied on September 22, 1975. On October

15, 1975, Mr. Justice Marshall extended the time to file this

petition to and including November 21, 1975. Jurisdiction is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether, in a federal criminal prosecution for con-

spiracy resulting in death, where the only evidence connect-

ing defendant to the crime is the testimony of an immunized

alleged co-conspirator who is shown by uncontradicted evt-

dence to be a drug addict, a pathological liar, and seriously

mentally ill, it is fundamentally unfair to deny a defense

motion to psychiatrically examine the witness.

2. Whether, in a prosecution based on the uncorroborated

testimony of an alleged co-conspirator, it is fundamentally

unfair to exclude any and all expert psychiatric testimony,

based upon observation of the witness and study of medical,

biographical, prison and probation records, that the Gevern-

ment witness is (a) a drug addict, (b) a pathological liwr,

(c) a psychopath, (d) unable to distinguish reality, (e) unable

to respect an oath, (f) seriously ill and in need of medical

treatment.

STATEMENT OF THE CASE

Petitioner was convicted on both counts of a two-count

indictment, in a jury trial before Judge Charles Stewart in the

Southern District of New York, on January 31, 1975. Count

1 charged that, in violation of 18 U.S.C. § 241, petitioner

and unindicted co-conspirator Barry Lipsky conspired to

deprive a pruspective federal witness of her right to testify,

and that the conspiracy caused her death. Count 2 alleged

that petitioner impeded a federal witness, contrary to

2

—_

18 U.S.C. 3 1503, by killing her. Judge Stewart imposed a

life sentence on Count 1, to be served consecutive to a thirty-

five year sentence petitioner is presently serving for violations

of the narcotics laws. A five year concurrent sentence was

imposed on the second count.

The Government established without dispute that an un-

successful effort was made to serve a subpoena on Patsy

Parks on February 3, 1972, to testify in a federal narcotics

prosecution of petitioner, petitioner’s wife, and two other

defendants who were friends and neighbors of Parks. In-

formed by her roommate about the marshall’s effort to serve

her, Parks discussed the matter with friends, and suggested

she should leave town (T. 150, 156).* She did not want to

testify because, she said, she had already been an F.B.I. in-

former (T. 139) and was afraid even her eayaeene might kill

her if he knew (T. 150).

The night of February 3rd, she went looking for petitioner,

to seek his advice, although she hardly knew him (T. 163),

had seen him only once or twice. In the course of that quest,

she met Barry Lipsky in a nightclub.

The next day, Parks’ body was found in Long Island, New

York. Her throat had been cut, she had been stabbed nine

times (T. 1004) and her body had been burned by gasoline

flames (T. 998).

Lipsky, who had confessed some implication in the murder

to Nassau County authorities, was originally charged with first

degree murder by the State. Through intervention of federal

authorities, however, Lipsky was ultimately permitted to

plead quilty to manslaughter and received a sentence of 0 to

* Reference is to the trial transcript.

20 years. In addition, in return for his cooperation, the

federal authorities granted him informal immunity from

federal prosecution for the murder, numerous narcotics

offenses, and various other crimes.

As part of his deal with the Government, Lipsky testified

below. He swore that petitioner had actually orchestrated

the murder, wielded the knife and poured gasoline over the

victim’s body. According to Lipsky, his role has been limited

to buying the gasoline, luring Parks into the car, lighting the

match to the gasoline, driving the car, and helping to dispose

of the evidence.

The defense theory was that Barry Lipsky alone, or in

league with someone other than petitioner, had murdered

Parks. {t was thus an attack on the credibility of Lipsky’s

testimony which implicated petitioner. According to the

defense, petitioner had no motive to kill Parks, as proved by

her grand jury testimony, which did not implicate him in any

crime (T. 74), and the fact that Parks hardly know petitioner

(T. 163). The defense also relied on serious inconsistencies in

Lipsky’s testimony, inherent improbabilities, and external

contradictions. The thrust of the defense, however, was that

Lipsky was crazy, and had a unique combination of per-

verted drives, needs and propensities, which would make it

likely that he would commit such a bizarre murder himself,

then try to pin responsibility on someone else.

On cross-examination, the defense sought to elicit from

Lipsky that (1) in a previous prosecution of petitioner for

violation of the narcotics laws, Lipsky had perjuriously im-

plicated petitioner in a narcotics transaction in which peti-

tioner had played no part, (2) in two previous prosecutions

of petitioner for violations of the narcotics laws, Lipsky had,

4

with full knowledge of the prosecutor, perjuriously denied

any promises or understandings with the Government, when

in fact he had been granted immunity by the very prosecutor

who elicited his perjury; (3) one month before Patsy Parks

was murdered and burned, Lipsky suggested to a friend of his

that two witnesses against the friend be “burned.” The trial

judge precluded all these inquiries.

The precluded cross-examination was complained of on

appeal. The court, below,holding that all the rulings were

discretionary, affirmed.

Motion for Psychiatric Examination

Prior to trial, petitioner moved for a psychiatric cxamina-

tion of Lipsky, the Government’s witness (A. 13)*. A related

motion to disqualify Lipsky was also made (A. 57). Alleging

serious reasons to doubt Lipsky’s mental competence to be a

witness and, in any event, that a psychiatric examination

would disclose substantial evidence bearing upon Lipsky’s

credibility, petitioner sought permission to have Lipsky

examined by a psychiatrist approved by the court. [n support

of the motion, petitioner proferred numerous documents:

a. Transcripts of conversations in 1972 between Lipsky’s

attorney and an Assistant United States Attorney, wherein

they agreed to Lipsky’s being a Government witness, then

discussed his mental condition and competence as a witness.

Therein, Lipsky’s attorney said he intended to have Lipsky

examined by a ‘“‘whole battery of psychologists,’ as there was

“something wrong with him.” Even if not “‘beastly insane,”

he is ‘‘capable of going crazy as hell.... If he’s gonna be any

good, he’s got to be competent.”’ The prosecutor agreed with

* Reference is to the Appendix in the Court of Appeals.

5

these observations, acknowledging that the prosecution

‘can’t use a screwball.” The attorney observed that Lipsky

was becoming “edgy”. The prosecutor agreed, saying “It’s

more noticeable.” Both expressed concern for Lipsky’s

“emotional stability.’ (A. 15)

b. An affidavit filed by Lipsky’s attorney in state court,

more than six months after the preceding conversations,

wherein the attorney swore that Lipsky was mentally incom-

petent to stand trial, being unable to communicate with his

attorney. The affidavit recited, inter alia, that, before his

arrest, Lipsky had fired a gun into a television set to silence

the announcer and had thrown two scales into the Atlantic

because they refused to reveal that he had lost weight (A. 18).

c. Lipsky’s sworn testimony in prior proceedings wherein

he had admitted consulting a psychiatrist, banging his head

against a wall in anger, committing perjury before a federal

grand jury in Florida and in two previous prosecutions

against this petitioner, being a regular user of cocaine and

other drugs since 1967, being an afficianado of horror pro-

grams, even to the extent of adopting as an alias the name of

one of his favorite horror program characters (A. 16).

d. Letters by Lipsky’s attorney to various people con-

cerning Lipsky’s sanity, e.g., to the jail warden asking help

for “this mentally disturbed man in keeping what sanity he

has’’ (A. 25), to the state prosecutor, noting Lipsky is

“mentally deteriorating very rapidly” and warning that

Lipsky would be useless if not competent (A. 27).

e. A letter from Lipsky to his sister wherein Lipsky says,

“f{ am completely without emotional feelings that most

‘straight’ people have. ... I am a violent, vindictive, warped-

minded cynic, of a magnitude that you have absolutely no

6

conception of.’’ Noting that he was then (July, 1972) being

incarcerated with “‘nuts’ or psychos”, Lipsky told his sister,

“{ am probably closer to where [ actually belong than ever

before.” He continued, however, that “the things these luna-

tics do and say only amuses me and [ wish [ could ... go

near them to ‘steam them up’ and laugh at them. .. .”’(A. 30)

Petitioner’s pre-trial motion, which was denied, was re-

newd at trail, during cross-examination of Lipsky. In addi-

tion to the evidence of mental illness adduced pre-trial, peti-

tioner had elicited the further facts that Lipsky had put a

pistol to his brother’s head to win a fight (A. 353), struck his

hand against walls in anger at least a dozen times (A. 356),

had frequent temper tantrums (A. 356). Lipsky also used

numerous aliases from horror programs, e.g. “Mr. Graves,”

“Mr. Holmes,” “Morris Stroud,” ‘‘Wart’’ (A. 410), amused

himself by making faces at the television set and making grue-

some faces and noises at children to scare them (A. 681). It

was also proved that Lipsky signs cards and letters with a

claw (Def. Ex. P).

Admitting that his mental condition deteriorated rapidly

since he was jailed for the murder in March, 1972 (A. 359,

365), Lipsky also acknowledged taking cocaine, marijuana,

hashish, barbituates and alcohol, in various combinations,

from 1967 until 1972 (A. 392, 400). Indeed, he admitted

taking barbituates during petitioner’s trial (A. 264), and

banging his hand against the wall and crying in the witness

room (A. 398).

Lipsky also admitted to a perverse pattern of dishonesty,

including stealing books from a classrzute (A. 399), stealing

money from his mother and forging checks on her account

(A. 279), a large number of bizarre swindles, and a nearly

7

unbroken record of lies and perjuries in legal proceedings

since 1970.

When asked what the oath meant to him, rather than re-

ferring to any obligations, Lipsky said, ““You sit here and

swear to tell the truth.” (A. 423). He said he did not know

the meaning of ‘“‘morally”’ (A. 362).

Petitioner also informed the trial judge that he had a

psychiatrist in the courtroom who had suggested various lines

of cross-examination which the court had precluded, e.g.,

about Lipsky’s admitted nightmares, which were relevant to

psychiatric evaluation of Lipsky’s competence and credi-

bility. Petitioner also informed the court that the psychiatrist

had tentatively diagnosed Lipsky as a ‘‘psychopath, a patho-

logical liar, an egomaniac.’”’ The court again denied the

motion, for the inexplicable reason, ‘“‘[Y] ou have not made

out a good enough case.” (A. 630)

On appeal, the Court of Appeals relegated this issue to a

footnote, affirming the denial as within the trial judge’s dis-

cretion (App. p. 5096, n. 4).

Wholesale Exclusion of Psychiatric Testimony

Thwarted in its efforts at a psychiatric examination, the

defense offered the testimony of a distinguished psychiatrist,

one normally employed as an expert witness by the Depart-

ment of Justice.’ The psychiatrist, Dr. Abrahamsen, based

his analysis on a three-day observation of Lipsky as he testi-

fied in the courtroom (A. 749), studying a transcript of that

ISee United States v. Baird, 414 F. Zd 700 (2d Cir. 1969); United States v.

Wetser, 428 f. 2d 932 (2d Cir. 1969); United States v. Levy, 449 F. 2d 769 (2d

Cir. 1971).

testimony (A. 745), numerous letters by Lipsky (A. 743),

medical records (A. 31, 35, 77), probation reports (A. 63),

medical and family histories (A. 79). On the basis of all these

data, Dr. Abrahamsen testified, in an offer of proof, that

Lipsky was ‘mentally ill” (A. 749), a “psychopathic per-

sonality”’ (A. 751), a “‘very sick man” (A. 759), ‘mentally

diseased” (A. 821). with what psychiatrists refer to as a

“character disorder” (A. 823). Lipsky shares with psychotics

(A. 757) an inability to distinguish reality (A 751), is abnor-

mally self-serving, highly egocentric and narcissistic; truth to

him is always secondary (A. 751, 1142). Indeed, his reality,

i.e. his “truth” is simply what seems to serve his interests

(A. 752, 759). He cannot tell the truth unless it perfectly

concides with his own interests, as he perceives them (A.

759), and he has a distorted perception of self-interest (A.

761). Lipsky is a pathological liar (A. 791), violent, vindic-

tive, preoccupied with horror, and is unable to accept blame

for his own conduct. On the contrary, he “blames everyone

else’’ for what he has done (A. 762).

The psychiatrist also interpreted jail records of drug

dosages, which records were otherwise incomprehensible. The

records indicated very strong recent dosages of Valium and

Dalmane (A. 789), establishing present drug addiction and

mental illness (A. 789-90, 807-8).

The trial judge ruled out all the foregoing testimony, even

that concerning drug dosages and drug dependency. The

Court of Appeals affirmed, holding the matter to be one of

discretion.

REASONS FOR GRANTING THE WRIT

1. The decision below is grievously wrong, anachronistic,

and fundamentally unfair in matters vital to the integnty of

the federal criminal process.

[n prosecuting petitioner for what was essentially a murder

upon the uncorroborated testimony of Barry Lipsky, the

Federal Government impinged upon the clear policy of the

State of New York, which has the core concern for crimes of

murder, for that State holds unequivocally that no conviction

can be obtained upon such testimony. People v. Hayes, 325

N.Y.S. 2d 815 (1971).? Even where a federal prosecution

does not so clearly clash with state policy, however, a

prosecution based on the testimony of an alleged accomplice

is fraught with possible injustice and any claimed errors must

be scrutinized with great care. United States v. Persico, 305

F. 2d 534 (2d Cir. 1962). Cf, Glasser v. United States, 315

U.S. 60, 67 (1942). The court below, however, abdicated its

responsibilities and set back the course of justice at least half

a century.

A. The Right to a Psychiatric Examination

There is no doubt of the court’s authority to order a

mental examination of a prosecution witness, Carrado v.

United States, 210 F. 2d 712, 721 (D.C. Cir. 1954), and this

authority becomes a duty whenever there is reasonable doubt

as to the competence or the credibility of the witness. State

v. Butler, 27 N.J. 560, 143 A. 2d 530 (1958); United States

v. Butler, 481 F. 2d 531 (D.C. Cir. 1973); United States v.

Benn, 476 F. 2d 1127, 1130 (D.C. Cir. 1973).

More than a quarter century ago, Wigmore called for the

routine psychiatric examination of prosecution witnesses

where, by reason of dependency on the prosecution or the

nature of the charge, the claims are inherently suspect

? Petitioner has never been prosecuted for a state offense.

10

3 Wigmore, Evidence § 924(a) (3d ed. 1940). Scholarly and

judicial authorities are clearly in accord. See Conrad, Mental

Examination of Witnesses, 11 Syracuse L. Rev. 149 (1960);

Weihofen, Testimonial Competence and Credibility, 34 Geo.

Wash. L. Rev. 53, 75 (1965); Slovenko, Witnesses, Psychiatry,

and the Credibility of Testimony, 19 U. of Fla. L. Rev.

330 (1958); Comment, 59 Yale L.J. 1324 (1950). While no

one claims that a defendant has a right in every case to have

the witness against him examined, there is plainly such a right

where some evidence of mental abnormality exists and the

charge is a very serious one, State v. Butler, supra, Taborsky

v. State, 116 A. 2d 433 (Conn. 1955), or the witness is a

heavy part of the prosecution’s case. United States v. Butler,

supra; Comment, 59 Yale L. J. 1324 (1954).

The evidence submitted below in support of petitioner’s

motion was not only overwhelming proof of psychological

abnormality, if not insanity, it was also incontrovertible

proof of prolonged narcotics use. Lipsky admitted that in

addition to other drugs, he snorted cocaine ‘‘on almost a

daily brsis” beginning in 1967 (A. 393). He sometimes took

cocaine twenty times a day (A. 395). Citing medical sources,

the District of Columbia Circuit, in Hansford v. United

States, 365 F. 2d 920, 922 (D.C. Cir. 1966), recently ob-

served that:

“Current medical knowledge indicates that use of

narcotics often produces a psychological and

physiological reaction known as an acute brain syn-

drome, which is a ‘basic mental condition charac-

teristic of diffuse impairment of brain tissue

function.’ The characteristic symptoms of the syn-

drome are impairment of orientation; impairment

of memory; impairment of all intellectual func-

11

tions including comprehension, calculation, knowl-

edge and learning, impairment of judgment; and

lability and shallowness of affect.”

As to cocaine users in particular, it has been noted that:

Prolonged and heavy cocaine use can produce

severe psychological and physiological effects. One

frequent psychological result is hallucinations. In

some cases, prolonged use causes paranoid de-

lusions. Some commentators claim that in these

states of hyperexcitement and paranoia, the

cocaine user is extremely dangerous and potentially

violent. McLaughlin, Cocaine: The History and

Regulation of a Dangerous Drug, 58 Cornell L.Q.

537, 551 (1973).

Still, as the court noted in Hansford, supra, 365 F. 2d at

923:

“The effects of narcotic use will vary depending

on the amount of drugs taken, the degree of toler-

ance developed by the individual, and the idio-

syncratic reaction of the person to the drugs. For

this very reason, only by a hearing can it be deter-

mined whether any particular [person] is incom-

petent because of his use of drugs.”’

The defense was denied that hearing, and denied access or

inquiry into the relationship of Lipsky’s drug usage to his

other mental disorders. In refusing the reguested examir tion,

the court not only denied the defense access to evidence 1 ¢le-

vant to the jury’s assessment of credibility, it neglected .ts

solemn duty to determine the testimonial competence of

witnesses. United States v. Crosby, 462 F.2d 1201 (D.C. Cir.

1972). Not only was Lipsky incontrovertibly proved to be

a mentally ill drug addict, he was a persistent perjurer who

12

had never been and did not expect to be prosecuted for his

perjury, even that directed against the petitioner in prior

prosecutions. There was, therefore, no basis whatsoever for

believing that Lipsky was a competent witness. He utterly

and totally lacked ‘‘a sense of moral responsibility ... to

speak the truth’’, which is a requisite of testimonial compe-

tence. 2 Wigmore, Evidence § 495 (3d ed. 1940).

Apart from Lipsky’s incompetence, however, his mind was

a storehouse of information relating to his credibility. Since

he was literally a captive of the Government, the Government

had exclusive dominion over this evidence. In denying the de-

fense access to such evidence, the court effectively sup-

pressed evidence and made a fair trial impossible. Cf. Washb-

ington v. Texas, 388 U.S. 14, 19 (1967); Giles v. Maryland,

386 U.S. 66, 99 (concurring opinion of Mr. Justice Fortas)

(1967).

B. The Expert’s Testimony

Petitioner offered a highly qualified, concededly expert

psychiatrist to testify concerning Lipsky’s competence and

credibility. The adequacy of the data upon which the opinion

was based was neither disputed nor disputable. The sole rea-

son for excluding the doctor’s testimony was the preposterous

assertion that it would be “‘of no use to the jury” (A. 845).

The admissibility of medical opinion relating to testi-

monial competence or credibility has been clear for a quarter

century. United States v. Hiss, 88 F. Supp.559 (SDNY 1950),

affd. 185 F. 2d 822 (2d Cir. 1950), cert. den. 340 U.S. 948

(1951); Taborsky v. State, 95 A. 2d 59 (Conn. 1953); United

States v. Partin, 493 F. 2d 750 (Sth Cir. 1974); McCormick,

Evidence § 45, at 95 (2d ed. 1970). Indeed, exclusion of evi-

13

dence similar to that offered below was held reversible error

more than half a century ago. Ellarson v. Ellarson, 198 App.

Div. 103, 190 N.Y.S. 6(1921); State v. Pryor, 74 Wash. 121,

132 P. 874 (1913).

The literature of psychiatry makes clear that a jury is

particularly needful of medical guidance in assessing the credi-

bility of a psychopathic liar like Lipsky. As if writing about

Lipsky, Henry Weihofen said of psychopathic personality

(sociopathy):

[t can have a material effect on credibility. Although

capacity to observe and recoilect is apparently un-

impaired, the sense of moral responsibility to nar-

rate truthfully may be affected. This may render

the witness careless with the truth, impulsive, and

undependable. Because he is so utterly devoid of

any sense of guilt, he feels justified in telling all

sorts of lies to escape the consequences of his acts.

The sociopath may harbor unconscious hos-

tilities that lead to false accusations of biased testi-

mony. He may crave the publicity that his accusa-

tions give him or, driven by unconscious motives,

may indulge in repetitious lying which is wholly

irrational and without any discernable end. He may

appear normal, mild-mannered, and intelligent. His

lies, indeed, are often told with more conviction

than normal persons show. Even when his lying is

exposed, he is able to make quick adjustments and

thoroughly mislead the layman. Even the psychia-

tric expert has the greatest difficulty in recogniz-

ing the existence of the condition or assessing the

person’s credibility.’’ Weihofen, Testimonial Com-

petence and Credibility, 34 Geo. Wash. L. Rev. 53,

86 (1965).

Accord, Davidson, Testimonial Capacity, 39 B.U.L. Kev. 172,

179 (1959); 1 American Handbook of Psychiatry 581-3

14

(Arieti, ed. 1959); Redlich and Freedman, Theory and

Practice of Psychiatry 392 (1966).

The jury may of course disregard an expert’s testimony, or

it may accept the testimony but believe the witness anyway.

it is simply outrageous, however, to hold that the jury may

not bear the expert, and consequently that the Government

may convict a defendant of murder and sentence him to life

on the testimony of a psychopath while denying the defense

a right to have the jury hear its medical evidence.

Where, as here, the heart of the defense is that the witness

himself was the murderer, and that both the crime and the

testimony laying the crime on the defendant were the prod-

ucts of a disordered mind, exclusion of the doctor’s testi-

mony denies the petitioner the right to put on a defense.

Washington v. Texas, 388 U.S. 14, 19 (1967); Chambers v.

Mississippi, 410 U.S. 284 (1973); Webb v. Texas, 409 US.

95 (1972). Cf. Davis v. Alaska, 415 U.S. 315 (1974).

Mental disorders are so peculiarly the subject of expertise

that lay opinion on the matter is of.cn denigrated or even

excluded. The jury in the present case undoubtedly rejected

petitioner’s defense becauce they heard no medical evidence

to back it up. They were entitled to assume, and surely did

assume, that if there was anything to petitioner’s claim that

Lipsky was a crazy murderer, the defense could have found

a psychiatrist to support it. By excluding the evidence, there-

fore, the court virtually directed a verdict of guilty. Con-

ferring upon a trial judge the unfettered ‘‘discretion’’ to

reject such evidence is tantamount to repealing the right to

trial by jury.

15

2. The Decision Below ts in Conflict With Other Circuits

In holding that a psychiatric examination of the prosecu-

tion witness is discretionary, even where the witness is a

proven drug addict and the witness is uncorroborated, the

decision below conflicts with decisions of the Court of

Appeals for the District of Columbia. See United States v.

Butler, 481 F. 2d 531 (1973).

In rejecting expert evidence that the prosecution witness is

mentally ill, a pathological liar, and a drug addict, the de-

cision below is in conflict with the Fifth Circuit, United

States v. Partin, 493 F. 2d 750 (1974), and the District of

Columbia Circuit, United States v. Crosby, 462 F. 2d 1201

(1972).

3. The Decision Below Brings the Administration of lederal

Criminal Justice into Disrepute.

Although from time to time reversing egregious State

Court decisions, this Court has recently manifested a willing-

ness to permit the United States Courts of Appeal to become

the courts of last resort in criminal cases. The decision below

is the sequela of such a tendency. The court below felt free to

abdicate its responsibilities under the rubric of trial judge dis-

cretion. The trial judge, in the alleged exercise of that discre-

tion, refused the defense access to vital evidence—a psychiatric

examination—and kept from the jury other vital evidence—

the expert’s diagnosis—and thus deprived petitioner of a

meaningful jury trial, all in a case consisting of the uncor-

roborated testimony of an immunized accomplice who ad-

mittedly committed perjury as a Government witness in two

prior prosecutions of this petitioner. The citizenry can simply

have no faith in such a process. Justice must not only be fair,

16

it must appear to be fair. Offut v. United States, 348 U.S.

11 (1954).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted and the decision of the Court of

Appeals for the Second Circuit should be reversed.

Respectfully submitted,

STEVEN B. DUKE

127 Wall Street

New Haven, Conn. 06520

Counsel for Petitioner

17

APPENDIX

- APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CiRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the twenty-second day

of September, one thousand nine hundred and seventy-five.

Present: Hon. Tom C. Clark

Associate Justice

Hon. Water R. Mansfield

Hon. William H. Mulligan

Circuit Judges

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v. 75-1149

VINCENT PACELLI,

Defendant-Appellant.

A petition for a rehearing having been filed herein by

counsel for the appellant, Pacelli.

Upon consideration thereof, it is

Ordered that said petition be and hereby is DENIED.

A. DANIEL FUSARO

Clerk

18

—_— —-——-e-

UNITED STATES COURT OF APPEALS

For tHe Seconp Crrcuitr

+O

No. 1153—September Term, 1974.

(Argued June 24, 1975 Decided July 24, 1975.)

Docket No. 75-1149

Untrep Srates or AMERICA,

Appellee,

——against—

Vincent Pace, JR.,

Defendant-A ppellant.

+o

Before:

Cuark, Associate Justice,*

MAaNsFIELD and Mu.uican, Circuit Judges.

+r

Appeal from a judgment of conviction in the United

States District Court for the Southern District of New

York, Hon. Charles E. Stewart, J., entered after jury ver-

dicts of guilty on Count One of conspiracy to violate the

civil rights of a Government witness by causing her death

in violation of 18 U.S.C. § 241, and on Count Two of en-

deavoring by force to impede the witness’s testimony and

injuring her on account of her having testified before a

grand jury in violation of 18 U.S.C. § 1503.

Affirmed.

oo

’ United States Supreme Court, retired, sitting by designation.

5087

James E. Nestanp, Assistant United States At-

torney (Paul J. Curran, United States At-

torney for the Southern District of New

York, John D. Gordan, III, Asst. United

States Attorney, of Counsel), for Appellee.

Steven B. Duxe, New Haven, Connecticut

(Pierce O’Donnell, New Haven, Connecti-

cut, on the brief), for Defendant-A ppellant.

+r

Muuuican, Circuit Judge:

Vincent Pacelli, Jr., was convicted on January 31, 1975

after a two-week jury trial before Hon. Charles E. Stewart,

United States District Judge for the Southern District of

New York, on both counts of a two-count indictment. Pacelli

was charged in Count One with a conspiracy with Barry

Lipsky to violate the civil rights of a Government witness,

Patsy Parks, by causing her death before she could exer-

cise her right to testify, in violation of 18 U.S.C. § 241.

Count Two charged the use of force to impede her testi-

mony, in violation of 18 U.S.C. 41503. On February 28,

1975, Judge Stewart sentenced Pacelli to a term of life

imprisonment on Count One and to five years imprison-

ment on Count Two, to be served concurrently with each

other but consecutively to a twenty-year term and a fifteen-

year term of imprisonment on two prior narcotics convic-

tions. Pacelli now appeals from the judgment of convic-

tion.

I. Tue Facts

The appellant here had previously been convicted of the

same crimes involving the murder of Patsy Parks but that

conviction was reversed by this court, United States v.

Pacelli, 491 F.2d 1108 (2d Cir. 1974), and Pacelli’s petition

5088

for certiorari on certain of the issues in that case was de-

nied by the Supreme Court, 419 U.S. 826 (1974). Judge

Mansfield’s opinion for this court on the prior appeal de-

tails the facts which led to the homicide of Miss Parks.

In that case as well as this, the prosecution hinged upon

the testimony of Barry Lipsky, who participated in the

killing. Pacelli did not testify in his own behalf in this

trial and his defense, 9s in the initial trial, consisted of

an attack on the credibility of Barry Lipsky. We find no

reason, therefore, to repeat the sordid story except in

summary fashion.

Patsy Parks, under subpoena, testified before a grand

jury in the Southern District of New York on May 27,

1971 about a box, apparently containing money, which

she had kept for Pacelli in her apartment. An indictment

charging Pacelli, his wife and two others with narcotic

violations was returned by the grand jury. The case was

set for trial on February 8, 1972. On February 3, 1972,

Government agents sought unsuccessfully to serve Parks

with a subpoena for her appearance at the Pacelli trial.

Lipsky, who was advised by Parks of the attempted ser-

vice and her desire to contact Pacelli, testified that he

drove to Pacelli’s apartment in New Rochelle in the early

morning of February 4, 1972. Upon being advised of the

Parks subpoena, Pacelli stated: “It’s that box. It’s that

God-damned box. She has been to the grand jury and

she ratted me out. I know what I have to do.” The two

men then drove in a rented car to New York, stopping

to purchase four gallon cans of gasoline, and then pro-

ceeded to the “Hippopotamus,” a New York discotheque

where Parks was drinking with friends while waiting to

be contacted by Pacelli. Lipsky told Parks where Pacelli

was parked and the three then proceeded to a remote

area of Massapequa, New York. Enroute, Pacelli dis-

eussed the narcotics case with Parks and offered her

5089

eG EEE eee aaa

money to leave town, which she declined. Finally, Pacelli

stabbed Parks in the throat and several times in the chest

with a knife until she was dead. Her body was then

doused by Pacelli with the gasoline purchased earlier and

set on fire, with Lipsky lighting the match. The men then

returned to Pacelli’s apartment in New Rochelle, dispos-

ing of Parks’s effects, the empty gasoline cans and the

knife and cleaning the car to eliminate bloodstains. Parks’s

body was found on the morning of February 4th and was

identified a week later by footprints and dental charts.

Although the Government’s case was dependent upon

Lipsky’s detailed testimony, it was corroborated in some

respects by other witnesses. Parks was placed by wit-

nesses in the Hippopotamus on the night and at the time

testified to by Lipsky; the night attendant at the gasoline

station identified Lipsky as the purchaser of four gallon

cans of gasoline at about 2:30 a.m. one morning; a knife

was found in the mud of a bay area two blocks from

Pacelli’s residence where Lipsky stated they had disposed

of the murder weapon. There was also evidence that the

same rented car in which the murder was committed was

again rented by Pacelli’s drug partner, Al Bracer, on

February 16, 1972 and was found engulfed in flames two

days later in Fairfield, New Jersey, at a time when Lipsky

was hiding in Florida. Chemica] inspection disclosed that

there was gasoline throughout the interior of the car

and indicated, although not conclusively, that traces of

blood were present on the floor carpet.

II. Lrurrations on Cross-EXaMINATION

Appellant argues that the trial court erred in preclud-

ing the defense from cross-examining Lipsky with respect

to three matters of direct significance in assessing his

credibility. It is well understood that the admission of

evidence on cross-examination is a matter within the dis-

5090

cretion of the trial judge. United States v. Jenkins, 510

F.2d 495, 500 (2d Cir. 1975); United States v. Miles, 480

F.2d 1215, 1217 (2d Cir. 1973) (per curiam). Here almost

400 pages of the transcript and two-and-a-half days of

trial time were devoted to Lipsky’s cross-examination. It

is significant that a comparatively small amount of time

(perhaps one-third of the cross-examination) was devoted

to challenging Lipsky’s eyewitness account of the fatal

assault upon and the cremation of Patsy Parks. The bulk

of the examination was directed to an attack upon Lip-

sky’s credibility and his hostility to Pacelli. In determin-

ing whether or not independent evidence of Lipsky’s moti-

vation for perjury was admissible, we obviously cannot

ignore the evidence already before the jury, as well as

that which was available to the defendant and would not

have involved diversionary forays into extraneous mat-

ters. United States v. Kahn, 472 F.2d 272, 279 (2d Cir.),

cert. denied, 411 U.S. 982 (1973); United States v. Bowe,

360 F.2d 1, 16 (2d Cir.), cert. denied, 385 U.S. 961 (1966).

An examination of the record before us indicates that

the jury had ample evidence with which to support the

defendant’s proposition that Lipsky was a vicious crimi-

nal with every motive to inculpate Pacelli.

On direct examination, Lipsky related in detail the hor-

rible execution of Patsy Parks by Pacelli but also dis-

cussed his own participation which commenced with alert-

ing the defendant to her appearance before the grand

jury. He furthermore obviously knew of Pacelli’s intent

to kill her; he purchased the gasoline, he took a book of

matches from the Hippopotamus and he put the match

to the gasoline which caused the conflagration aimed at

destroying the corpse and making its identification impos-

sible. Also on direct examination, he admitted to his al-

liance with Pacelli in the distribution of narcotics. On

cross-examination, he admitted that he had taken illegal

5091

EE —E="”~"—i‘ié‘séwlwT.S.eer, OO

drugs and was presently using medicinal drugs; he also

admitted that he had pleaded to a stock fraud charge in

cooperation with the Government. He admitted lying to

his lawyers, to juries and to a probation officer who he

knew was preparing a pre-sentence report which was to

be submitted to a sentencing judge. He admitted to sell-

ing stolen books in college and forging his mother’s checks.

He admittted that his attorney had told him on April 11,

1972, before he went before the grand jury, that an agree-

ment had been reached with the Government that he had

complete transactional immunity and would not be prose-

cuted for anything he told the Government, not for “any

damn thing.” He admitted that he lied in two previous

federal trials in 1972 about his understanding as to

whether or not he would be prosecuted. He further ad-

mitted that he thought that by testifying against Pacelli

he would “get off relatively easy.”

In view of this elicitation of the litany of Lipsky’s licen-

tious behavior, his corruption and his past perjury, the

argument that cross-examination was erroneously restricted

in the very areas in which his vulnerability had already

been exposed becomes insubstantial and unconvincing.

Judge Stewart, it is urged, erroneously refused to per-

mit cross-examination of Lipsky with respect to his testi-

mony in a narcotics trial in June 1972, which, it is alleged,

falsely implicated Pacelli. The testimony sought to be

introduced was that of one Joseph Nunziata, a deceased

New York City detective, who testified in a case involving

another defendant, Valentine, which ended in a mistrial.

Lipsky testified that he, Valentine and Pacelli had con-

ducted a drug transaction in a New York cafe, “‘Yellow-

fingers.” Nunziata’s testimony, Pacelli contends, was that

he had observed both Valentine and Lipsky at the scene,

but did not observe Pacelli in the restaurant. On denying

Pacelli’s post-trial motion for a new trial based on the

5092

exclusion of this evidence, Judge Stewart found that this

testimony did not establish that “Pacelli was not in fact

at the restaurant for at lea#! some of the time in question.”

A reading of the testimony reveals that Nunziata had a

clear view of Lipsky and Valentine, but does not indicate

that he could observe all of the persons in the Yellowfingers

cafe at the time or that he would have recognized Pacelli

had he been present. Nunziata’s death, of course, made

further explication impossible. Aside from the failure of

the Nunziata testimony to establish inconsistency or per-

jury on Lipsky’s part, there was such a picnitude of evi-

dence otherwise demonstrating Lipsky’s villainy that we

find no abuse of discretion in the action by the court in pre-

cluding the admission of the Nunziata testimony. United

States v. Blackwood, 456 F.2d 526, 530 (2d Cir.), cert.

denied, 409 U.S. 863 (1972).

1 Pacelli’s brief argues that this testimony was also essential] in un-

dermining Lipsky’s claim, which was “inextricably related to his testi-

mony about the murder,” that he was associated with Pacelli in the

narcotics business. Aside from the inconclusive nature of the testimony,

the nexus between Lipsky’s testimony in the Valentine case and the

murder of Parks immediately following her grand jury testimony and

subpoer . in the Pacelli narcotics trial is, at best, remote. In any case,

the record establishes from the testimony of Susan Weyl that Lipsky

and Pacelli used her apartment in November and December 1971 to cut

and package heroin and cocaine.

The argument that the testimony was essential to establish the animus

of Lipsky toward Pacelli is not persuasive. In United States v. Pacelli,

supra, 491 F.2d at 1118, this court reversed the prior conviction because

the Government had failed to disclose a letter from Lipsky to the United

‘States Attorney's office in which he indicated nis willingness to testify

against Pacelli. Im the retrial below, the letter which had been claimed

to be vital to impeach Lipsky was not offered in evidence because it

would have revealed to the jury that Lipsky's perjured testimony was

given in prior trials in which Pacelli was a defendant.

The appellant relies upon United States v. Haggett. 438 F.2d 396

(2d Cir.), cert. denied, 402 U.S. 946 (1971). This court has charac-

terized the Haggett case as one “of almost complete preclusion of cross-

examination as to a witness’ motive for testifying, see United States

v. Haggett, supra, 438 F.2d at 399-400 ...." United States v. Black-

wood, supra, 456 F.2d at 530. That is certainly not the case here.

5093

As we have already indicated, the jury was fully aware

from Lipsky’s cross-examination that he had committed

perjury in two prior criminal cases. His previous testi-

mony in the June and December 1972 trials was read to

the jury. Lipsky admitted that although he knew he had

complete immunity, he lied in answering that he had no

immunity. Counsel for Pacelli was, however, precluded

below from attempting to establish that Lipsky’s perjury

was suborned by an Assistant United States Attorney. It

is urged that the alleged subornation would be material

to establish that Lipsky felt free to lie and invent false

testimony because he knew that the Government was will-

ing to condone his perjury. We note that in the prior

Pacelli appeal the same argument was made and was

rejected by this court. United States v. Pacelli, supra, 491

F.2d at 1120. Although it does not appear in the record,

on the argument of this appeal the Government brought

to our attention that charges of professional misconduct

against the Assistant United States Attorney for the very

incidents urged here as outrageous have been examined

by the Association of the Bar of the City of New York and

that the Assistant has been exonerated. Aside from this,

we deem it well within the discretion of the trial judge for

him to have avoided the sidetracking which would inevitably

have resulted in diverting the jury from the issue of

Pacelli’s guilt to what, in effect, would have constituted

a separate fact-finding venture as to whether or not a par-

ticular Assistant United States Attorney knowingly per-

mitted Lipsky to perjure himself in prior trials. See United

States v. Trejo, 501 F.2d 138, 140 (9th Cir. 1974); United

States v. Kahn, supra, 472 F.2d at 279; United States

v. Bowe, supra, 360 F.2d at 16. See also Smith v.

Illinots, 390 U.S. 129, 132 (1968); United States v. Cata

lano, 491 F.2d 268, 273 (2d Cir.), cert. denied, 419 U.S.

5094

——

825 (1974); United States v. Mahler, 363 F.2d 673, 678 (2d

Cir. 1966).?

Finally, it is urged that the trial court committed rever-

sible error in refusing to permit defense counsel to ask

Lipsky whether he had suggested to one Bruce Gordon in

January 1972 that he “burn” two witnesses. The evidence,

it is argued, not only would have established Lipsky’s

tendency toward violence but also would have undermined

his story that his role in the Patsy Parks murder was

passive and was motivated by his fear of Pacelli. The fact

that Lipsky was a hardened criminal not adverse to vi-

olence was made evident to the jury throughout the trial.

Lipsky admitted buying the gasoline and lighting the match

which cremated the body. There is no question but that

Lipsky was a principal in the murder.’ There is nothing

to justify the argument that Lipsky was in such fear of

Pacelli that he participated unwillingly in this brutal

killing. The question at issue was not Lipsky’s guilt but

2 Appellant also claims that the evidence of the role of the Assistant

United States Attorney in the extension of promises to Lipsky was

essential to show that Lipsky perjured himself in the June and Decem-

ber 1972 trials when he testified that no promises had been made to

him in return for his testimony. Lipsky explained that his erroneous

testimeny in the two trials was the result of confusion as to what

offenses the questions about promised immunity were concerned with.

Paceili argues thet this explanation could have been decisively under-

mined by proof / the Assistant United States Attorney's role since

it was that very prosecutor who had asked him the crucial questions.

However, the defense here had other evidence which it could have used

to challenge Lipsky’s explanation. Lipsky had testified in United States

v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 95 8. Ct. 1351

(1975), prior to this trial of Pacelli for the murder of Patsy Parks,

that he was not confused when he denied that any promises had been

made to him in return for his testimony. Based upon Lipsky’s Sperling

testimony, this court on the prior appeal herein characterized Lipsky's

explanation that his earlier perjury was unintentional as “a blatant

lie.” 491 F.2d at 1119. Nonetheless, appellant made no effort to utilize

this evidence to impeach Lipsky.

3 Examples of Lipsky’s unusual behavior recited in Part III of this

opinion also suggest a capacity for violence on his part.

5095

Pacelli’s. We consider the refusal of the court to entertain

the question to have been within its discretion, particularly

in view of the far-ranging latitude permitted here in the

cross-examination of Lipsky.

Ill. Psycuiatric Evipence

Pacelli further claims that the trial court committed

reversible error in refusing to allow a psychiatrist, Dr.

David Abrahamsen, to testify that Lipsky was psychopathic

and incapable of telling the truth. Whether or not psy-

chiatric testimony is admissible to impeach the credibility

of a witness is within the discretion of the trial judge, see

Hamling v. United States, 418 U.S. 87, 108 (1974), and that

judgment will not be disturbed unless it is plainly in error.

United States v. Barnard, 490 F.2d 907, 912-13 (9th Cir.

1973), cert. denied, 416 U.S. 959 (1974); United States v.

Butler, 481 F.2d 531, 535 (D.C. Cir. 1973); United States v.

Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1973); United States

v. Rosenberg, 108 F. Supp. 798, 806 (S.D.N.Y.), aff'd, 200

F.2d 666 (2d Cir. 1952), cert. denied, 345 U.S. 965 (1953).

We see no error in Judge Stewart’s determination not to

permit the expert psychiatric testimony sought to be in-

troduced. The psychiatrist testified in the absence of the

jury at some length, and a study of this examination, the

penetrating cross-examination and the questioning by the

court itself compels the conclusion that Judge Stewart

properly determined that Dr. Abrahamsen’s testimony

would be of no use to the jury.‘ The credibility of Lipsky

4 A pretrial motion for a psychiatric examination of the witness Lipsky

was denied by Judge Stewart. This was properly within his discretion.

United States v. LaBarbera, 463 F.2d 988, 990 (7th Cir. 1972); United

States v. Russo, 442 F.2d 498, 503 (2d Cir. 1971), cert. denied, 404

U.S. 1023 (1972). It is noteworthy that, on the voir dire, Dr. Abraham-

sen testified that an examination of Lipsky would not assist him in

determining whether he was telling the truth since Lipsky would be

5096

was properly a question for the jury. United States v.

Barnard, supra, 490 F.2d at 913. See also United States

v. Bright, slip op. 3625 (2d Cir., May 21, 1975). The court

her. charged the jury that, since Lipsky was an accomplice

by his own admission, his testimony was suspect. All of the

eccentric behavior which indicated to the psychiatrist that

Lipsky was incapable of telling the truth was before the

jury. Lipsky admitted to the jury that he shot out his

television set with a gun because the picture rolled; that he

threw a set of scales into Biscayne Bay because of his

inability to lose weight; that he held a gun to his brother’s

head after an argument; that he lost his temper at inan-

imate objects; and that he described himself in a letter

to his sister, which was read to the jury, as “a violent,

vindictive, warped-minded cynic of a magnitude that you

have absolutely no conception of.” He stated that in jail

he wished he could go near the “psychos” to “steam them

up and laugh at them... .” He admitted that he had

testified in a prior case that he had used cocaine as often

as 20 times in a 24-hour period. He admitted that in jail

he had banged his head against a wall because he was

angry at an officer. He admitted to the use of false names

and to a predilection for watching horror movies, during

which he would make faces and noises at the TV screen.

This recitation of Lipsky’s odd behavior and criminal

propensities was all before the jury and the testimony of

the psychiatrist could only have involved the jury in a

trial within a trial causing further irrelevant distraction.

The psychiatrist admitted on cross-examination that 12

average people on a jury would, without the warning of

a psychiatrist, recognize that Lipsky’s testimony had to be

self-serving and defensive. In December 1972, Lipsky was examined by

two psychiatrists who found no mental defect which interfered with

Lipsky’s ability to understand the charges made against him, consult

with his counsel or cooperate with the court.

5097

reviewed “very carefully indeed.” He also stated that a

large portion of criminals was psychopathic, so that his

diagnosis of Lipsky is hardly surprising. In any event,

since he testified that Lipsky, as a psychopath, was unlikely

to tell the truth unless it coincided with his own self-

interest, it is difficult to see how he could determine,

based upon Lipsky’s own testimony, what Lipsky’s self-

interest might be at any particular time or place.°

Pacelli’s other arguments on appeal are without merit.®

Affirmed.

5 Had Dr. Abrahamsen heen permitted to testify before the jury the

jury might well have been confused by his testimony, as an examination

thereof makes clear. Although a complete reading of the transcript

establishes that Dr. Abrahamsen’s testimony was properly excluded, one

example of the reasoning which prompted the decision of Judge Stewart

is illuminating. In his testimony below Lipsky was asked: “What does

[the oath] mean? His answer was: “It means you sit here and swear

to tell the truth, to the best of your ability and the best of your

knowledge and the best of your memory.” Dr. Abrahamsen testified that

this answer indicated to him that Lipsky “doesn’t understand really

what it means to tell the truth.” The next several pages of the tran-

script illustrate the inability of the judge to understand the psychi-

atrist’s conclusion. That inability is shared here. How th» doctor's con-

clusion would have been of aid to the jury is far from clear.

6 Appellant suggests, as he did on the prior appeal, that he could not

have been convicted on Count One of the violation of 18 U.S.C. § 241

because there is no ‘right’ to be a federal witness. This contention was

properly rejected on the prior appeal. 491 F.2d at 1113-15. Appellant

also argues that the Government in any case proved no violation of

section 241 since it failed to establish that the specific purpose of the

conspiracy was to deprive Patsy Parks of her right to testify at trial.

We see no need to recapitulate the Government's case against Pacelli.

It is enough to say that the Government clearly showed that Pacelli

killed Patsy Parks to prevent her from testifying against him.

Appellant also claims (a) that, unless both of the two alleged co-

conspirators are guilty, neither can be; (b) that, since there was no

evidence that Lipsky knew Parks wes to be killed to prevent her from

exercising her right to testify, Lipsky could not be guilty of the crime;

and (¢) that if Lipsky was not guilty, neither was Pacelli. The evi-

dence, however, clearly demonstrates that Lipsky knew that Parks was

to be killed to prevent her from testifying. Pacelli told Lipsky after.

(Footnote continued on following page)

5098

—

— se

(Continued)

being informed of the existence of the subpoena that Parks had “ratted

[him] out” and that Pacelli knew what he had to do, which Lipsky

interpreted as an expression of an intent to do away with Parks. ,

Appellant argues that Judge Stewart abused his discretion in im-

posing sentence, since he inadequately disclosed his reasons for imposing

a severe sentence. Whatever may be the trial judge's duty in explaining

a sentence, see Dorszynski v. United States, 418 U.S. 424 (1974), it

is clear that Judge Stewart acted properly here. He stated, among

other reasons, that he was imposing a severe sentence because of the

brutality of the offense, a justification which seems to us adequate under

the circumstances. Appellant also argues that Judge Stewart should

not have considered Pacelli’s two prior convictions and that the sen-

tences therefor were influenced by Pacelli’s guilt in the murder of Patsy

Parks. There is no merit to the first portion of this contention and

the second must be rejected because it is based upon mere speculation.

Finally, appellant argues that the rule of North Carolina v. Pearce, 395

U.S. 711 (1969) was violated since Pacelli was sentenced below to a

term of life imprisonment to run consecutive to Pacelli's sentences on

two prior narcotics offenses, whereas the sentence on the first conviction

for the murder of Patsy Parks was to run consecutive to only the first

of these prior convictions. Assuming that there was any actual increase

in the sentence (the two sentences for the Parks murder being both

for the length of Pacelli’s life), there is no violation of Pearce here

since the second of Pacelli’s narcotics convictions was not returned until

after Pacelli was sentenced for the first time on the murder charge.

Pearce does not require a sentencing court to ignore an intervening

conviction on another charge.