# Petition — Cassesso v. Meachum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0270%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 858 ## Text . Supreme Court, U. W138 197 In the MICHAEL RODAK, JF Supreme Court of the United States. JcToser TERM, 1976. No. 76-42 LEWIS GRIECO, PETER LIMONE, JOSEPH SALVATI AND HENRY TAMELEO, PETITIONERS, RESPONDENTS. Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit. Dav Berman, 100 George P. Hassett Drive, Medford, Massachusetts 02155. BATEMAN & SLADE, INC. Table of Contents. Citations to opinions below Jurisdiction Questions presented Statutory provisions Statement of the case Reasons for granting this writ Introduction I. Petitioner Peter Limone was constitutionally entitled to severance under the rule of Bruton v. United States, 391 U.S. 123 (1968) II. Petitioners were deprived of the right to be informed of the charges pending against them and further deprived of that right when the trial court admitted against them highly prejudicial evidence of virtually no probative value in the case on trial, which evidence tended to associate them with other crimes and with criminal or- ganizations A. Bill of particulars (not applicable to peti- tioner Grieco) B. Baron’s beliefs when he testified before the grand jury (applicable to all petitioners) C. The Cosa Nostra question (applicable direct- ly to petitioner Limone and indirectly to all petitioners) D. The loan-sharking question (applicable to petitioner Limone) E. Questions about Limone’s friends (applicable to petitioner Limone) F. Questions about petitioner Grieco’s domestic difficulties (applicable to petitioner Grieco) oo fof} NUN Ne 10 18 21 31 es TABLE OF CONTENTS. ili — TABLE OF CONTENTS. III. Petitioner Cassesso’s rights under the Fifth and H. Statement about defense interruptions 71 Sixth Amendments were violated by the admis- I. Violation of an agreement p 72 sion of incriminating statements elicited after he J. A “trick” question 73 had been indicted and had retained counsel — K. Asking the jury to use their imagination 74 Massiah v. United States, 377 U.S. 201 (1964) 33 L. Expectation of interruptions 77 IV. Petitioners were deprived of the right to pre- M. The absence of Puopolo 79 sent evidence and cross-examine properly and N. Comment on failure of petitioner Cassesso effectively the Commonwealth’s witnesses 37 to deny he was in Florida 80 A. Examination on voir dire 37 O. Comments on lack of dignity in courtroom 81 B. Cross-examination of Glavin 39 P. Identification of petitioner Cassesso as de- V. There was no acquiescence by counsel or by fendant in other case 82 petitioners in the submission of an ex parte brief Vit. Petitioners were constitutionally entitled to by the prosecutor to the judge; the Supreme have the jury instructed that the testimon’’ of an Judicial Court having considered petitioners’ accomplice or an informer is to be carefully argument on this point, it was properly before scrutinized 85 the District Court on petition for writ of habeas IX. It was error to give instructions shifting the corpus. The submission of such a brief deprived burden of proof 87 petitioners of due process of law 42 X. Petitioner Henry Tameleo was entitled to rest at the close of the Commonwealth’s case 91 VI. Petitioners were constitutionally, entitled to see the grand jury minutes of Baron’s testimony 54 VII. Petitioners were deprived of a fair trial by comments and conduct of the trial judge and the XI. Petitioners were entitled to a new trial be- cause of the suppression of exculpatory evidence and because of newly discovered evidence 93 A. Status of affidavits filed by petitioners and prosecutor 57 A. Cumulative effect of the judge’s remarks 57 their right to an evidentiary hearing in the B. Imputing a false statement to defense coun- District Court 93 sel 6l B. Petitioners are entitled to a new trial be- C. The “birds of a feather” remark 62 cause of suppression of exculpatory evidence 99 D. Remark to observe the petitioners’ physical 1. The Berman affidavit 99 characteristics 63 2. The Stuart affidavit 105 E. Imputing misconduct to petitioner Grieco’s C. On the basis of the Baron affidavit 110 Conclusion 112 counsel on Baron’s military record 65 F. Suggesting that counsel was inconveniencing the jury 67 G. Remarks about prejudicing rights 69 iv TABLE OF CONTENTS. Appendix Opinion of Court of Appeals for the First Circuit, dated April 7, 1976 113 Memorandum and order of District Court, dated July 10, 1975 127 Opinion of Supreme Judicial Court in Commonwealth v. French et al., dated May 4, 1970 137 Opinion of Supreme Judicial Court in Commonwealth v. Cassesso, dated December 8, 1971 189 Judgment of Court of Appeals for the First Circuit, dated April 7, 1976 199 Table of Authorities Cited. CASEs. American Woolen Co. v. Boston & Maine Railroad, 190 Mass. 152, 76 N.E. 658 (1906) 30 Baxter v. Palmigiano, 96 S. Ct. 1551 (1976) 98 Berger v. United States, 295 U.S. 78 (1935) 74 Betcher v. Hay-Roe, 429 Pa. 371 (1968) 111 Bowen v. Johnston, 306 U.S. 19 (1939) 43 Brady v. Maryland, 373 U.S. 83 (1963) 107 Brookhart v. Janis, 384 U.S. 1 (1966) 97 Bruton v. United States, 391 U.S. 125 (1968) - 10, 12, 14, 17, 18, 84 Bursten v. United States, 395 F. 2d 976 4 Cir. 1968) 60, 61 Carnley v. Cochran, 369 U.S. 506 (1962) 36 Chapman v. California, 386 U.S. 18 (1967) 14 wa a TABLE OF AUTHORITIES CITED. Vv Ciucci v. Illinois, 356 U.S. 571 (1958) 27 Cochran v. Kansas, 316 U.S. 255 (1942) 96, 98, 106, 111 Cole v. Arkansas, 333 U.S. 196 (1948) 19, 25 Commonwealth v. Baker, 348 Mass. 60, 201 NZ. 2d 829 (1964) 18 Commonwealth v. Benesch, 290 Mass. 125, 194 N.E. 905 (1935) 13 Commonwealth v. Byron, 14 Gray, 31 (1859) 23 Commonwealth v. Cabot, 241 Mass. 131, 135 N.E. 465 (1922) 74 Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E. 2d 698 (1971), vacated as to death penalty 408 U.S. 936 (1972) 2, 7, 8, 99, 106, 107 Commonwealth v. Chalifoux, 362 Mass. 811, 291 N.E. 2d 635 (1973) 33 Commonwealth v. DelValle, 351 Mass. 489, 221 N.E. 2d 922 (1966) 22 Commonwealth v. French, 357 Mass. 356, 259 N.E. 2d 195 (1970), vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972) 2, 7, 8, 11, 12, 14, 16 et seq. Commonwealth v. Giacomazza, 311 Mass. 456, 42 N.E. 2d 506 (1942) 23 Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517 (1920) 28, 30, 39, 85 Commonwealth v. Jordan, 207 Mass. 259, 93 N.E. 809 (1911), affd. 225 U.S. 167 (1912) 19 Commonwealth v. Kerrigan, 345 Mass. 508, 188 N.E. 2d 484 (1963) 98 vi TABLE OF AUTHORITIES CITED. Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E. 2d 504 (1964) 13 Commonwealth v. LeBlanc, 1973 Mass. Adv. Sh. 1091, 299 N.E. 2d 719 (1973) 16, 17 Commonwealth v. Manning, 1975 Mass. Adv. Sh. 1334, 327 N.E. 2d 104 Commonwealth v. McLeod, 1975 Mass. Adv. Sh. 1178, 326 N.E. 2d 905 Commonwealth v. Nassar, 354 Mass. 249, 237 N.E. 2d 39 (1968) 59 Commonwealth v. Phelps, 210 Mass. 109, 95 N.E. 868 (1911) 49 Commonwealth v. Putnam, 2 Allen, 301 (1861) 23n Commonwealth v. Redmond, 357 Mass. 333, 258 N.E. 2d 287 (1970) Commonwealth v. Richardson, 354 Mass. 773, 241 N.E. 2d 924 (1968) Commonwealth v. Rogers, 181 Mass. 184, 63 N.E. 421 (1902) 13 Commonwealth v. Ross, 339 Mass. 428, 159 N.E. 2d 330 (1959) Commonwealth v. Stone, 321 Mass. 471, 73 N.E. 2d 896 (1947) Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E. 2d 5 (1968), cert. den. 393 U.S. 1056 (1969) Commonwealth v. Wallace, 123 Mass. 400 (1877) 35 Commonwealth v. Webster, 5 Cush. 295 (1850) 89, 90 Cornelius v. State, 12 Art. 801 (1852) 24n D & P Equipment Corp. v. White Spot Construction Corp., 355 Mass. 787, 243 N.E. 2d 922 (1969) 40 TABLE OF AUTHORITIES CITED. vii Davis v. Boston Elevated Railway, 235 Mass. 482, 126 N.E. 841 (1920) 49 Davis v. Wechsler, 263 U.S. 22 (1923) 56 Dennis v. United States, 384 U.S. 855 (1966) 54 Douglas v. Alabama, 380 U.S. 415 (1965) 27, 31 Dutton v. Evans, 400 U.S. 74 (1970) 13, 14, 22 Earl v. Commonwealth, 356 Mass. 181, 248 N.E. 2d 498 (1969) 94 Elkins v. United States, 364 U.S. 206 (1960) 35 Escobedo v. Illinois, 378 U.S. 478 (1964) 12 Estelle v. Williams, 96 S. Ct. 1691 (1976) 33, 93 Fay v. Noia, 372 U.S. 391 (1963) 47 Fisher v. Pace, 336 U.S. 155 (1949) 62 Garrity v. New Jersey, 385 U.S. 493 (1967) 72 Giglio v. United States, 405 U.S. 150 (1972) 98, 108 Giles v. Maryland, 386 U.S. 66 (1967) 107 Griffin v. California, 380 U.S. 609 (1965) 81 Hall v. United States, 150 U.S. 76 (1893) 74, 84 Harrington v. California, 395 U.S. 250 (1969) 16 Herlihy v. New York, New Haven & Hartford Railroad Co., 227 Mass. 168, 116 N.E. 546 (1917), app. dis. 247 U.S. 526 (1918) 23 Hickory v. United States, 160 U.S. 408 (1896) 61 Hoffa v. United States, 385 U.S. 293 (1966) 34, 35, 37, 86 Holt v. Virginia, 381 U.S. 131 (1965) 61 Hoover v. Beto, 467 F. 2d 516 (5th Cir. 1972) 22 Humphrey v. Cady, 405 U.S. 504 (1972) 43, 44 Vili fTABLE OF AUTHORITIES CITED. Interstate Commerce Commission v. Louisville & Nash- ville Railroad Co., 227 U.S. 88 (1913) Jackson v. Denno, 378 U.S. 368 (1964) Johnson v. Bennett, 414 F. 2d 50 (8th Cir. 1969) Jones v. Commonwealth, 327 Mass. 491, 99 N.E. 2d 456 (1951) King v. United States, 372 F. 2d 383 (D.C. Cir. 1967) 74 Kitchell v. United States, 354 F. 2d 715 (1st Cir. 1965) 75 Konigsberg v. State Bar of California, 353 U.S. 252 S&S (1957) 31 Krulewitch v. United States, 336 U.S. 440 (1949) 27 Lanzetta v. New Jersey, 306 U.S. 451 (1939) 27 Lefkowitz v. Newsome, 420 U.S. 283 (1975) 43 Marshall v. United States, 360 1/.S. 310 (1959) 84 Massiah v. United States, 377 J.S. 201 (1964) 33, 34, 35, 36, 37 Matter of Dyce Sombre, 1 Mac. & G. 116 (1849) 48 McFadden v. United States, 63 F. 2d 111] (7th Cir. 1933) 48 Mesarosh v. United States, 352 U.S. 1 (1956) 112 - Miranda v. Arizona, 384 U.S. 436 (1966) 12 Moore v. Dempsey, 261 U.S. 86 (1923) 49 Moore v. Illinois, 408 U.S. 786 (1972) 33, 109 Morgan v. United States, 304 U.S. 1 (1938) 49 In re Murchison, 349 U.S. 133 (1955) 51 Napue v. Illinois, 360 U.S. 264 (1959) 98 Nardone v. United States, 308 U.S. 338 (1939) 37 National Association for the Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 40 TABLE OF AUTHORITIES CITED. ix National Association for the Advancement of Colored People v. Button, 371 U.S. 415 (1963) 31 Offutt v. United States, 348 U.S. 11 (1954) 70 Palko v. Connecticut, 302 U.S. 319 (1937) 56, 112 Patriarca v. United States, 402 F. 2d 314 (lst Cir. 1968), cert. den. 393 U.S. 1022 (1969) 16, 35, 54, 55, 110, 111 Pointer v. Texas, 380 U.S. 400 (1965) 38, 97 Pyle v. Kansas, 317 U.S. 213 (1942) 96, 98, 106, 111 Quercia v. United States, 289 U.S. 466 (1933) 61, 62 Raley v. Ohio, 360 U.S. 423 (1959) 43 Reagan v. United States, 157 U.S. 301 (1895) 90 Sacher v. United States, 343 U.S. 1 (1952) 70 Scales v. United States, 367 U.S. 203 (1961), reh. den. 366 U.S. 978 (1961) 30, 63 Shepard v. United States, 290 U.S. 96 (1933) 22 Smith v. Florida, 410 F. 2d 1349 (5th Cir. 1969) 107, 110 Smith v. Illinois, 390 U.S. 129 (1968) 38, 41, 62, 97 Smith v. United States, 360 U.S. 1 (1959) 48 Spencer v. Texas, 385 U.S. 554 (1967) 85 Starr v. United States, 153 U.S. 614 (1894) 61 State v. Johnson, 221 Iowa 8, 264 N.W. 596 (1936) State ex rel. Wong Sun v. District Court, 112 Mont. 153, 113 P. 2d 996 (1941) 20 Stewart v. United States, 366 U.S. 1 (1961) 84 Stump v. Bennett, 398 F. 2d 111 (8th Cir. 1968) 91 Sullivan v. Scafati, 428 F. 2d 1023 (1st Cir. 1970), cert. den. 400 U.S. 1001 (1971) 90 x TABLE OF AUTHORITIES CITED. Townsend v. Sain, 372 U.S. 293 (1963) 98 Turner v. Yates, 16 How. 14 (1853) 84, 97 United States v. Cruikshank, 92 U.S. 542 (1875) 19, 20 United States v. Glen Alden Coal Co., 4 F.R.D. 211 (S.D. N.Y. 1943) 20 United States v. Gorman, 393 F. 2d 209 (7th Cir. 1968) 69 United States v. Guglielmini, 384 F. 2d 602 (2d Cir. 1967) 61 United States v. Hannon, 105 F. 2d 390 (3d Cir. 1939), cert. den. 308 U.S. 594 (1939) 39 United States v. House, 471 F. 2d 886 (1st Cir. 1973) 86 United States v. Kelley, 314 F. 2d 461 (6th Cir. 1963) 70 United States v. Keogh, 391 F. 2d 138 (2d Cir. 1968) 108, 109 United States v. Macleod Bureau, 6 F.R.D. 590 (D. Mass. 1947) 20 United States v. Missler, 414 F. 2d 1293 (4th Cir. 1969) 35, 37 United States v. Procter & Gamble Co., 356 U.S. 677 (1958) 56 United States v. Socony-Vacuum Oil Co., Inc., 105 F. 2d 809 (7th Cir. 1939), revd. 310 U.S. 150 (1940) 73, 85 United States v. Womack, 454 F. 2d 1337 (5th Cir. 1972) 52 Washington v. Texas, 388 U.S. 14 (1967) 18 Williams v. Kaiser, 323 U.S. 471 (1945) 96, 98, 106, 111 Wills v. Russell, 100 U.S. 621 (1879) 41 Tn re Winship, 397 U.S. 358 (1970) 87 Young v. United States, 346 F. 2d 793 (D.C. Cir. 1965) 69 TABLE OF AUTHORITIES CITED. xi CONSTITUTIONAL AND STATUTORY PROVISIONS. United States Constitution Supremacy Clause 72 First Amendment 31, 63 Fifth Amendment 2, 4, 12, 35, 63, 81 Sixth Amendment 2, 3, 4, 14, 17, 18, 25 et seq. Confrontation Clause 13 Fourteenth Amendment 5, 19, 27, 51, 63, 81, 95 Due Process Clause 3, 72, 86, 87, 98, 112 28 U.S.C. § 1254(1) 2 Mass. G.L. c. 233, § 240 59 Mass. G.L. c. 268, § 1 lll Mass. G.L. c. 277 § 40 5, 21 § 79 5, 6 MISCELLANEOUS 16 Am. Jur. 2d § 279 49 Anderson, Wharton’s Criminal Evidence (12th Ed.), vol. 2 86 Black’s Law Dictionary (Deluxe 4th Ed.) lll Davenport, The Confrontation Clause and the Co- Conspirator Exception in Criminal Prosecutions, 85 Harv. L. Rev. 1378 (1972) . 14 Leach & Liacos, Handbook of Massachusetts Evidence (4th Ed.) 105 Massachusetts Superior Court Rule 71 57, 74 McCormick on Evidence 22 xii TABLE OF AUTHORITIES CITED. 8 Moore’s Federal Practice (2d Ed.) 112 Note, Criminal Law — Confessions — Bruton Doctrine, 59 Mass. L.Q. 78 17 Note, Harmless Constitutional Error: A Reappraisal, 83 Harv. L. Rev. 814 52 Random House Dictionary of the English Language (Unabridged Ed.) 26 Toomey, Some Procedural Aspects of the Prosecution of a Conspiracy in Massachusetts, 53 Mass. L.Q. 207 13, 88 Underhill’s Criminal Evidence, vol. 1, § 181 86 Webster's Third New International Dictionary lll Wigmore on Evidence (McNaughton Ed.) 23, 24, 51 In the Supreme Court of the United States. Ocroser Term, 1976. No. RONALD CASSESSO, LEWIS GRIECO, PETER LIMONE, JOSEPH SALVATI AND HENRY TAMELEO, DOUGLAS VINZANT, RESPONDENTS. Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit. Citations to Opinions Below. The opinion of the United States Court of Appeals for the First Circuit is not yet reported.' Earlier opinions in this case ' The opinions of the Court of Appeals, the United States District Court and the Supreme Judicial Court and the judgment of the Court of Appeals are printed in the Appendix hereto. 2 are reported sub nom. Commonwealth v. French, 357 Mass. 356, 259 N.E. 2d 195 (1970), judgment vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972), and sub nom. Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E. 2d 698 (1971), judgment vacated as to death penalty 408 U.S. 936 (1972). Jurisdiction. The judgment of the United States Court of Appeals for the First Circuit was entered on April 7, 1976. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). The Circuit Justice extended until July 13, 1976, the time for filing this petition. Questions Presented. 1. Was petitioner Peter Limone entitled to severance under the rule of Bruton v. United States, 391 U.S. 123 (1968), and, if so, was the refusal to grant such severance harmless error? 2. Were petitioners deprived of the basic constitutional right to be informed of the charges pending against them, and were petitioners further deprived of that right when the trial court admitted against them highly prejudicial evidence of virtually no probative value in the case on trial, which evidence tended to associate them with other crimes and with criminal organizations? 3. Were petitioner Ronald Cassesso and other petitioners deprived of their rights under the Fifth and Sixth Amendments when statements allegedly made by Mr. Cassesso after his 3 indictment and outside the presence of his counsel, who had already been retained, were admitted against him in evidence? 4. Were petitioners deprived of their right to cross-examine a prosecution witness on voir dire, and was petitioner Cassesso deprived of his Sixth Amendment right to cross-examine a key prosecution witness as to prior statements inconsistent with the testimony given by this witness at trial? 5. Were petitioners deprived of their liberty without due process of law when the prosecutor submitted and the trial court received a brief of which no copies were given to peti- tioners or their counsel and, if so, was such error harmless or waived? 6. Did the refusal of the trial court to allow petitioners to see the minutes of a prosecution witness before the grand jury deprive petitioners of due process of law after that witness admitted inconsistencies between his testimony to the grand jury and his testimony at trial? 7. Were petitioners deprived of a fair trial as a result of comments and conduct of the prosecutor and the court? 8. Were petitioners entitled as a matter of constitutional law in the circumstances of this case to an instruction that the testimony of an accomplice should be carefully scrutinized? 9. Did instructions given by the trial judge to the jury unfairly shift the burden of proof to petitioners on questions of alibi and conspiracy? 10. Was petitioner Henry Tameleo entitled under the Due Process Clause of the Fourteenth Amendment to rest at the close of the Commonwealth’s case? 1l. Were petitioners entitled to a new trial because of the suppression of exculpatory evidence and because of newly discovered evidence, and in view of their affidavits in support of their motion for a new trial in the state court were they entitled to either an evidentiary hearing on their motion or to have their affidavits taken as true for all further proceedings? 4 5 Statutory Provisions. Section 1 of the Fourteenth Amendment to the Constitution of the United States is found at page XLVII of volume 1 of the The Fifth Amendment to the Constitution of the United United States Code (1958 Ed.): States is found at page XLVI of volume 1 of the United States Code (1958 Ed.): “All persons born or naturalized in the United States, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Sections 40 and 79 (paragraphs “Accessory Before the Fact” and “Conspiracy”) of chapter 277 of the General Laws of Massachusetts are set out at pages 3240-3241, 3248 and 3250 respectively of the Tercentenary Edition (1932) of the General The Sixth Amendment to the Constitution of the United Laws of Massachusetts, vol. II: States is found at page XLVI of volume 1 of the United States Code (1958 Ed.): “Section 40. The court may, upon arraignment of the “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for obtain- ing witnesses in his favor, and to have the assistance of counsel for his defence.” defendant, or at any later stage of the proceedings, order the prosecution to file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged, and if it has final jurisdiction of the crime, shall so order at the request of the defendant if the charge would not be otherwise fully, plainly, substantially and formally set out. If there is a material variance between the evidence and the bill of particulars, the court may order the bill of particulars to be amended, and may postpone the trial, which may be before the same or another jury, as the court may order. If, to prepare for 6 his defence, the defendant desires information as to the time and place of the alleged crime or the means by which it is alleged to have been committed, or more specific information as to the exact nature of the property described as money, or, if indicted for larceny, as to the crime which he is alleged to have committed, he may apply for a bill of particulars as aforesaid.” “Section 79. Accessory before the fact (under chap. 274, § 2) — Charge principal felony and proceed: That A. B., before the said felony was committed, did incite, procure, aid, counsel, hire or command the said (princi- pal) the said felony to do and commit. “Conspiracy — (1) That A. B. and C. D. conspired together to murder on E. F. (2) That A. B. and C. D. conspired together to commit rape upon E. F. (3) That A. B. and C. D. conspired together to steal the property, money, etc., of E. F.” Statement of the Case. The judgment of the United States Court of Appeals for the First Circuit affirming judgments of the District Court dismis- sing petitions for writs of habeas corpus raises questions of whether five men, all incarcerated for life, were deprived of their federal constitutional rights before, during and after their trial in the Superior Court of the Commonwealth of Massa- chusetts. The case is voluminous, and not the least of the problems that it presents is that of dealing adequately and accurately with the procedural and substantive record without making it unmanageable, if not unreadable. 7 Petitioners were indicted by a grand jury of the County of Suffolk, Commonwealth of Massachusetts, on October 25, 1967, in indictments charging them as accessories before the fact or principals to the first degree murder of Edward Deegan, conspiracy to murder Deegan, and conspiracy to murder Anthony J. Stathopoulos. They were tried before a jury and found guilty on all three indictments. On the indict- ments charging conspiracy they were sentenced to consecutive prison terms, and on the indictments charging murder all, except petitioner Salvati, were sentenced to death. They appealed to the Supreme Judicial Court which, although finding at least fourteen errors made in the course of the trial, affirmed the judgments on May 4, 1970. Commonwealth v. French, 357 Mass. 356, 259 N.E. 2d 195. On May 5, 1970, petitioner Limone filed a request for rehearing, which on May 13, 1970, was denied. Petitioners Limone and Cassesso filed timely petitions for writs of certiorari in this Court (No. 70-526). In the summer of 1970 petitioners also filed motions for new trial in the Superior Court of Massachusetts. Affidavits were attached to these motions. Petitioners requested an evidentiary hearing on the matters raised by the affidavits, but the court refused to hold one. It denied the motions, and two of the petitioners, Messrs. Limone and Cassesso, again appealed to the Supreme Judicial Court of Massachusetts. On December 8, 1971, the Supreme Judicial Court affirmed the judgments denying the motions for new trial. Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E. 2d 698. A second petition for writ of certiorari was filed in this Court seeking to review the second judgment of the Supreme Judicial Court (No. 71-1139). Although no question as to the constitutionality of the death penalty imposed upon four of petitioners had been raised in either the state court or in this Court in either proceeding, on June 28, 1972, this Court vacated both judgments in so far 8 as they left the death penalty undisturbed. Limone v. Massachusetts, 408 U.S. 936 (1972). The present petitions were filed in the United States District Court for the District of Massachusetts in January of 1974. The various respondents filed motions to dismiss, which after hearing were denied. The judge declined to hold an evidenti- ary hearing on several of the matters as to which petitioners requested such a hearing but did hold an evi’entiary hearing on the question of whether there had been improper submis- sion of a brief ex parte to the trial judge. On July 10, 1965, he filed a memorandum and order devoted mainly to discus- sing this issue and dismissing the petitions. On appeal, the United States Court of Appeals for the First Circuit affirmed. The two opinions of the Supreme judicial Court, reported sub nom. Commonwealth v. French, 357 Mass. 356, 259 N.E. 2d 195 (1970), and Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E. 2d 698 (1971), contain detailed statements of the evidence and the procedural history ot the case. Although as petitioners pointed out in their several petitions for writs of habeas corpus, they do not necessarily accept the Supreme Judicial Court’s characterizations of the evidence and the pro- cedure, it would serve no point to state the evidence presented in the state courts or to give a detailed procedural history here. This petition will be unavoidably long even without such a statement, and in several of the arguments it will be necessary to focus at length and in depth upon procedural and substan- tive problems. 9 Reasons for Granting This Writ. INTRODUCTION. This is the fourth time, the sixth if we count two previous petitions to this Court, that this case has come before a court sitting in a “reviewing” capacity. It thus seems strange that, given the gravity of this case, the flimsiness of the Common- wealth’s evidence, the doubts that the Commonwealth’s key witness has cast upon the veracity of his own testimony in the Superior Court by his subsequent affidavit, and the severity of the sentences, that many of the points which we are about to discuss in argument received only the most cursory review in the written opinions of the Supreme Judicial Court and the Court of Appeals and a few of the more important points have never been discussed in any judicial opinion. Certain facts about this case are too plain not to be recog- nized even by the most avid partisan. This was a complicated case that took an exceedingly long time to hear and try. Numerous exceptions were taken before, during and after trial, and these in turn became the basis for lengthy assignments of error. An appellate opinion discussing both the arguments and the facts underlying each such assignment would have been, if we may be excused some hyperbole, of interminable length. In an age when judges have been rebuked for writing too much, it is hardly surprising that any judge would wish to sweep under the broad carpet of generalization the bits and pieces that appellate counsel wish to exhibit to judicial scrutiny. Against this normal enough inclination must be weighed the requirements of law and justice. Whatever may be said at the trial level of our courts, where important decisions must often be made in, as it were, the twinkling of an eye, justice at the appellate level, we submit, must be more than an intuition 10 that a certain course of action was proper and right. At the close of his memorandum, the District Court Judge who heard this petition for writ of habeas corpus stated: “The petitioners certainly did not get a perfect trial, but they did get a fair one in constitutional terms.” We do not doubt that the author of these words intended to convey the fact that he had considered all of the errors argued by petitioners in support of their peti- tion for release on writ of habeas corpus and had concluded that they were without merit. Yet of the sixty-odd points argued by petitioners in their briefs, only two were discussed in the memorandum. One of these, the submission to the state trial judge by the prosecutor of an ex parte brief, received cursory treatment in an appendix to the opinion of the Supreme Judicial Court affirming the original judgments. What cannot be explained in terms of all the facts often cannot be defended. Five men are serving sentences of imprisonment for life, having been convicted of a crime of which they are most conceivably innocent. It should not be asking too much of the appellate processes that the constitu- tional arguments which they now raise be given formal con- sideration. I. Perirmioner Perer LIMONE was CONSTITUTIONALLY ENTITLED TO SEVERANCE UNDER THE RULE OF BruTON v. UNITED STATEs, 391 U.S. 123 (1968). Petitioner Limone argued in the Supreme Judicial Court and in the Court of Appeals that because statements of co-defend- ants Henry Tameleo and Ronald Cassesso (co-petitioners here), neither of whom testified at trial, were admitted into evidence and because these statements were incriminatory of petitioner, he was entitled to severance. This evidence was included in ll the testimony of Joseph Baron. Baron testified in essence that Peter Limone had offered him a contract to kill Ted Deegan (357 Mass. at 363). Baron then allegedly went to Henry Tameleo to obtain Tameleo’s “consent” to the killing (357 Mass. at 363-364). The following conversation thereupon allegedly ensued (Tr. 28, 3240-3241): “I [Baron] said to him that ‘Peter [Limone] offered me a contract on Teddy Deegan, and that the office okayed it.’ He said, ‘Yes, that’s right.’ 1 said, ‘Even though Peter said it was all right,’ I said, ‘I want you to okay it, I won't do it. Whatever you say I will do,’ and he says, ‘He definitely goes.’ He says, ‘No punk like Deegan is going to push the office around and cause trouble inside the Ebb Tide the way he has,’ and that he was definitely involved in a $82,000 burglary in Carmen Puopolo’s home.’” (Emphasis supplied.) After this alleged meeting with Mr. Tameleo, Baron allegedly contacted petitioner Cassesso to enlist his assistance in carrying out the enterprise (357 Mass. at 364). Baron and Mr. Cassesso allegedly drove to Providence, and, in the course of the trip, according to Baron’s testimony, the following conver- sation occurred: “I told him that the Deegan contract was an office matter and that Peter Limone was the one that offered it to me, and that it was okayed. He said to me that when we were kids, Peter ratted on some guys and sent them to Shirley. He said, ‘Do you trust him?” (Emphasis supplied.) 12 The Supreme Judicial Court offered four general reasons why Bruton should not apply to the exclusion of Tameleo’s and Cassesso’s alleged statements. We dispose of them in ascending order of complexity. 1. The court noted that four of the defendants at the joint trial testified (357 Mass. at 371-372). This, of course, is true but the only persons about whose alleged incriminatory state- ments petitioner complains are Messrs. Tameleo and Cassesso, who did not testify. 2. The court reasoned that the statements were as to Tameleo and Cassesso, the persons who allegedly made them to Baron, admissions rather than confessions (357 Mass. at 371). We assume, arguendo, that if Tameleo and Cassesso were asserting a Fifth Amendment right against self-incrimina- tion (cf. Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966)), this distinction might be plaus- ible. In point of substance, however, it is petitioner Limone who is asserting a right to confront and to cross-examine Tameleo and Cassesso, whose statements, incriminatory of him, came into evidence as their admissions. 3. The Supreme Judicial Court observed that there were “conspiracy charges, as well as [a] substantive murder charge” against petitioner. It held, therefore that “[p]rinciples .. . governing the admissibility of evidence of statements of co- conspirators, to prove conspiracy and common criminal enter- prises,* are thus applicable” (357 Mass. at 372). * Respondent did not allege that petitioner Limone engaged in a “joint enterprise” with co-petitioner Cassesso and co-defendant Tameleo. Rather the theory was that each defendant “could be found to have conspired” with Baron (357 Mass. at 393, 373, fm. 15). Given full scope, respondent's evidence does not connect petitioner with Cassesso or Tameleo nearly as closely as the evidence connecting Evans and Bruton in Bruton, supra. See statement of facts in opinion of Eighth Circuit, 375 F. 2d 355, 359 (Bruton implicated as “accomplice”). Limone is never shown to have met with or even talked to co-petitioner Cassesso about the Deegan crime and the only allegation that he met with or talked to Tameleo was an inference drawn by the prosecutor in summation. 13 It should be a sufficient answer to this “distinction” that the crime of being an accessory to murder, for which petitioner is now under sentence of life imprisonment, is far more serious than conspiracy, for which he was sentenced to a total of three years imprisonment. The trial judge having refused to sever the indictments, petitioner cannot through a joint trial be imprisoned for life without the opportunity to confront persons by whose statements he was incriminated, even if, arguendo, he could on the lesser offense be so deprived of his liberty for three years. The argument that the accused in a conspiracy case need not be given an opportunity to cross-examine the statements of alleged co-conspirators incriminating him is particularly weak in Massachusetts; under Massachusetts law not only must the trial judge first decide that a conspiracy exists before the such statements can be submitted to the jury against all defendants (Commonwealth v. Benesch, 290 Mass. 125, 132-133, 194 N.E. 905 (1935); Commonwealth v. Kiernan, 348 Mass. 29, 57-58, 201 N.E. 2d 504 (1964)), but the jury also must be given an opportunity to redetermine the judge’s finding and limit the statements if it disagrees therewith. Commonwealth v. Rogers, 181 Mass. 184, 191, 63 N.E. 421 (1902). Toomey, Some Procedural Aspects of the Prosecution of a Conspiracy in Massachusetts, 53 Mass. L.Q. 207, 241. If the accused is unable to cross-examine the person whose alleged statements incriminate hin , how can he show the judge and the jury that the statements should not be admitted against him? It is true that in Dutton v. Evans, 400 U.S. 74, 86 (1970), this Court declined to equate the Sixth Amendment's Confrontation Clause with the evidentiary hearsay rule and held constitutional a Georgia statute that stated: “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” In part, the opinion may be 14 read as countenancing such an exception to Brute» on the basis of the overwhelming evidence against the respondent (the defendant in the state criminal case) and the “peripheral significance” of the one witness's testimony whose admission supposedly violated the Sixth Amendment. 400 U.S. at 87. So read, the opinion is a reassertion of the harmless error rule. Chapman v. California, 386 U.S. 18, 24 (1967). But even if Dutton stands for a broader proposition that a defendant can be convicted on the basis of hearsay as long as the hearsay is admitted pursuant to a recognized, or at least a reasoned, exception to the hearsay rule, its holding can have no effect in this case in the absence of any evidence, except the evidence to which objection is made (and then only an inference from that evidence), that the alleged speaker (Mr. Tameleo) and the person whom he allegedly incriminated (Mr. Limone) had had any common dealings whatsoever. A contrary proposition would nullify Bruton outright. 4. We come now to the final ground upon which the Supreme Judicial Court held Bruton inapplicable. This was that the statements allegedly made by Tameleo “do not... very directly or clearly ... charge [petitioner] ... with complicity in Deegan’s murder” (357 Mass. at 372). To the extent that the court was right, petitioner Limone’s argument for severance was enhanced. As the article, The Confronta- tion Clause and the Co-Conspirator Exception in Criminal Prosecutions, Davenport, 85 Harv. L. Rev. 1378, 1402 (1972), states: “A declaration is inadmissible whenever it is either (1) materially ambiguous as to the meaning that would justify its admissibility or (2) ambiguous in a way that could be crucial or devastating.” 15 Tameleo’s alleged replies on their face may have incrimina- ted petitioner Limone by showing that Tameleo (a) supposedly had prior independent knowledge of Mr. Limone’s offer of a “contract,” (b) recognized Mr. Limone’s right to offer it and (c) identified Mr. Limone as part of the “office,” a code word for an alleged criminal hierarchy. Baron also testified about a conversation he had with Tameleo regarding Mr. Limone’s involvement in a contract to murder the witness Stathopoulos (Tr. 29, 3351-3352) and testified that even before the meeting at the Ebb Tide Tameleo knew about Mr. Limone’s alleged plan to have Deegan murdered (Tr. 28, 3266). While this may not be enough to show that petitioner was implicated by Tameleo’s statement, the assistant district attorney in his summation to the jury expended considerable effort on this point. We quote his argument (Tr. 51, 7407- 7408): “Now ladies and gentlemen .. . I said +> you that after this conversation with Peter Limone in the North End, Joseph Baron went to see Henry Tameleo. Now, we know that he went there to see him to get an okay on this contract. “And what happened? Baron says, ‘Peter offered me a contract on Teddy Deegan,’ and listen to these words carefully. They were said a long time ago in this trial, and there’s been a lot of evidence since then, and there’s been a lot of interruptions and a lot of attempts to help you forget it, so | must repeat it for you, but I know some of you remember it. He said, Peter offered me a con- tract on Teddy Deegan, and that the office okayed it.’ He said . . . ‘referring to Henry Tameleo’ . . . ‘Yes, that’s right.. ‘Now, what do we get by the words, ‘Yes, that’s right?’ Is it not safe to presume, using your common 16 sense, that the only way Henry Tameleo could have said, ‘Yes, that’s right,” was because he had spoken to Peter Limone and knew that this contract was going to come about? He admits that he knew something about it.” If it was permissible for the prosecutor to suggest the inference’ which he suggested, we submit that petitioner was entitled to severance so that it could be shown through cross-examination of Tameleo that either Baron or Tameleo or both were in error. It is significant that with regard to this fourth distinction the Supreme Judicial Court, unlike the Court of Appeals, sedu- lously avoids using the words “harmless error” or their equiva- lent. Harrington v. California, 395 U.S. 250, 254 (1969). The sole evidence that petitioner Limone ever offered Baron a contract was Baron’s testimony to that effect, and the sole indication within that testimony of any knowledge aliunde that such a contract had been offered was the alleged conver- sation between Baron and Tameleo. And we submit, the Court of Appeals notwithstanding, uncorroborated testimony by Baron could hardly be considered “overwhelming” evidence on any point. Patriarca v. United States, 402 F. 2d 314, 319 (Ist Cir. 1968). We recognize that the rule of Commonwealth v. French on this point may no longer be the law of Massachusetts. See Commonwealth v. LeBlanc, 1973 Mass. Adv. Sh. 1091, >In view of the prosecutor's statement to the court in his ex parte brief that Mr. Tameleo was the personal representative of the New England Cosa Nostra, and in view of the allegation that the “contract” to kill Deegan was an “office” contract, the prosecutor could hardly have believed that a visit from Mr. Limone to Mr. Tameleo was necessary to inform Mr. Tameleo of it or to obtain his approval. 17 1097-1098, 299 N.E. 2d 719 (1973); Note, Criminal Law — Confessions — Bruton Doctrine, 59 Mass. L.Q. 78, 79-80. Whether or not it is the law that Massachusetts courts cur- rently follow, it cannot be squared with the Sixth Amendment for the very reason stated by Mr. Justice Kaplan in LeBlanc, supra, at 1098, 299 N.E. 2d at 723: “Indeed, there is danger that juries will make severe implications even from indefinite references, for association is all too easy with a defendant who is conspicuously present in court and who has already been in some way tied to the criminal episode.” Finally, the Supreme Judicial Court claimed that the alleged statement of co-petitioner Cassesso to Barca (“He said to me that when we were kids, Peter ratted on some guys and sent them to Shirley. He said, ‘Do you trust him?’” — Tr. 3297) en route to Providence was not governed by Bruton because it implied “no charge [directly relating to] the Deegan murder” (357 Mass. at 373). We do not understand, however, that the right to cross-examine is limited to situations in which one co-defendant who fails to testify directly implicates the other with resect to the crime with which they are charged. Peti- tioner’s right to cross-examine a person who by innuendo allegedly accused him of associating with juvenile delinquents and of being generally untrustworthy is no less clear; indeed such testimony was so unnecessary to the Commonwealth’s case that petitioner’s right to cross-examine thereon should be even clearer. Petitioner Limone submits that Bruton required severance and that the distinctions upon which the Supreme Judicial Court rested its decision range from the inapplicable (the fact that four co-defendants testified) to the inadequate (the sup- posed lack of clarity in the accusations) to the downright ‘The Court of Appeals incorrectly described this conversation as one “which tended to link Limone to the decision to kill Deegan” (p. 3). 18 frivolous (against the makers, the statements were received as admissions rather than confessions). The Court of Appeals seemed to view the testimony of Baron as to his conversations with petitioners Tameleo and Cassesso about petitioner Limone as admissible evidence because if “the trials had been severed, the very same state- ments could have been offered against him [Limone] at his separate trial, given a proper showing of conspiracy” (page 4). As to Cassesso’s alleged statements about Limone’s untrust- worthiness, this proposition is almost certainly incorrect, for the statement would have been irrelevant. It is probably incorrect even as to petitioner Tameleo’s statements, given its ambiguity. We repeat that no conspiracy between Tameleo and Limone or between Cassesso and Limone was ever shown. But in any event, if the statement had been offered at a separate trial, petitioner would have been entitled to summon Cassesso and Tameleo as witnesses and cross-examine them. Washington v. Texas, 388 U.S. 14, 22 (1967). Common- wealth v. Baker, 348 Mass. 60, 62-63, 201 N.E. 2d 829 (1964). He could not do so at a joint trial. See Bruton, supra, 128; Baker, supra, 62. II. PEerrrioNeRS WERE DEPRIVED OF THE RIGHT TO BE INFORMED OF THE CHARGES PENDING AGAINST THEM AND FURTHER DEPRIVED OF THAT RIGHT WHEN THE TRIAL Court ADMITTED AGAINST THEM HIGHLY PreyupICIAL Evip—ENCE OF VIRTUALLY No PRoBATIVE VALUE IN THE CASE ON TRIAL, WHICH Evi- DENCE TENDED TO ASSOCIATE THEM WITH OTHER CRIMES AND WITH CRIMINAL ORGANIZATIONS. A. Bill of Particulars (Not Applicable to Petitioner Grieco). The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to be 19 informed of the nature and cause of the accusation.” The accused in a state court has the same right under the Four- teenth Amendment. Cole v. Arkansas, 333 U.S. 196, 201 (1948). We assume, arguendo, that petitioners have no specific right to be informed of the nature of the accusation through an indictment and that the right may be satisfied if the accused is furnished with particulars. Commonwealth v. Jordan, 207 Mass. 259, 267, 93 N.E. 809 (1911), affd. on other grounds, 225 U.S. 167 (1912). In United States v. Cruikshank, 92 U.S. 542, 557-558 (1875), this Court said: “In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed to mean, that the indictment must set forth the offence ‘with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;’ and in United States v. Cook, 17 Wall. 174 [21 L. ed. 539], that ‘every ingredient of which the offence is composed must be accurately and clearly al- leged.’ It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descent to particulars.’” (Emphasis supplied.) All of the present petitioners, except Mr. Grieco, were indicted as accessories before the fact. How do their indict- ments, which the Supreme Judicial Court of Massachusetts 20 held adequate without particulars, square with what was said in Cruikshank, supra? After charging petitioners Grieco and Wilfred French as principals, the indictments go on to say that the other petitioners at an unknown place and at some time (a day, a month, a year, ten years?) before March 12, 1965, incited (from a soapbox, by nasty innuendoes?), or procured (through blandishments, by newspaper advertisement?), or aided (in any of a thousand possible ways), or counselled (voluntarily or upon request?), or hired (for how much?), or commanded (by what authority?), these two persons to kill Deegan. They do not allege a single specific act which these petitioners are alleged to have committed. The right to particulars has been held constitutionally absolute, even in a jurisdiction where there was no statutory authority to grant them, where an “offense may be committed under [a] statute in several ways.” State ex rel. Wong Sun v. District Court, 112 Mont. 153, 156, 157, 113 P. 2d 996 (1941). Moreover, we submit that if petitioners were to prepare a defense, they were entitled to know at least within reasonable limits the time of the alleged offense. United States v. Glen Alden Coal Co., 4 F.R.D. 211, 213 (S.D. N.Y. 1943). United States v. Macleod Bureau, 6 F.R.D. 590, 593 (D. Mass. 1947). “Before March 12, 1965” is not a reasonable limit for the statement of the time within which the crime was allegedly committed. In its brief in the Supreme Judicial Court, the Common- wealth virtually conceded that petitioner Cassesso was entitled to particulars but argued that his motion therefor was filed too late. We assume that the Supreme Judicial Court disposed of this point adversely to petitioners, or in any event passed upon the merits uf the constitutional argument, when it said (357 Mass. at 400): “Although the motions were denied as having been filed late, the indictments were substantially in the statu- tory forms and were adequate.” To dispose of any doubts 21 that may remain, however, we point out that Mass. G.L. c. 277, § 40, explicitly notes that particulars may be ordered “upon arraignment of the defendant, or at any later stage of the proceedings.” Absent statutory authority, the court could not foreshorten a time allowed by statute for taking certain actions. B. Baron's Beliefs when he Testified Before the Grand Jury (Applicable to All Petitioners ). Baron was allowed to testify as to his belief when he testi- fied before a grand jury (Tr. 36, 4605). To say the least, these “beliefs” were prejudicial to petitioners. We quote the transcript (Tr. 36, 4605): “I believed that the office killed Tash — Arthur Bratsos, and Tommy DePrisco, my partners. I believed that the office took $70,000 off of their person which belonged to me for my bail. I believed that they plotted and tried to kill my wife and child. I believed that they tried to kill my brother. I believed that they tried to poison me in Charles Street Jail with my food, and they tried to kill me. And I believed that they stepped into my shylock business.” These beliefs were immaterial and irrelevant to the issue of Baron's “motive” to testify against petitioners, for which they were offered (Tr. 36, 4604). Petitioners were not charged with murdering Bratsos and DePrisco or attempting to murder Baron’s family or Baron himself. That the witness believed that the “office” had mistreated him in no way detracts from his real motives for testifying, i.e., what he had hoped to 22 achieve. If anything, the witness, if he believed these things, now had more motive than ever for lying in order to damage petitioners, since, according to his testimony, they were part of the “office.” But not only was Baron’s testimony as to his belief irrelevant and immaterial; it was also rank hearsay. Shepard v. United States, 290 U.S. 96, 103 (1933). McCormick on Evidence, pp. 470-471. Neither Massachusetts (Commonwealth v. DelValle, 351 Mass. 489, 495, 221 N.E. 2d 922 (1966)) nor any other authorities recognize such testimony as this as an exception to the hearsay rule. In a recent case explaining Dutton v. Evans, supra, the Fifth Circuit held in Hoover v. Beto, 467 F. 2d 516, 532 (1972): “Under Dutton, the mission of the confrontation clause is to assure that the trier of fact is provided with a satis- factory basis for evaluating the truth of the evidence presented to it, whether the evidence is hearsay or non- hearsay and whether the satisfactory basis is provided by cross-examination or otherwise. The Sixth Amendment is violated where there is no satisfactory basis.” We submit that there was no satisfactory basis in this case to evaluate the truth of either Baron’s belief, or, a fortiori, the truth of the proposition allegedly believed by him. Petitioners concede it to be elementary law that a witness like Baron whose motives® are called into question may intro- * We should at this point distinguish between a person’s motives for doing a certain act, e.g., need of money as a motive to rob, and his “motives” for lying on the witness stand. The former go to the essence of whether the person actually did the act in question and evidence relevant thereto can generally be introduced regardless of whether the person becomes a witness 23 duce evidence to show the absence of a motive or, at least, of a motive likely io lead to mendacity. See Wigmore on Evi- dence, § 952, p. 510 (McNaughton Ed.). This doctrine has no application to Baron's testimony in the case at bar. Almost all of the cases of which we are aware arise in a context in which a defendant is shown to have testified in a certain fashion out of an evil or selfish motive and evidence is subsequently intro- duced in contradiction thereof. See, e.g., Commonwealth v. Giacomazza, 311 Mass. 456, 469, 42 N.E. 2d 506 (1942). But a desire for personal revenge has never been considered a motive more likely to lead to credibility than the desire to escape punishment; on the contrary, whenever evidence of a desire for revenge has been introduced, it has been to destroy the witness's credibility. Commonwealth v. Byron, 14 Gray, 31 (1859). Herlihy v. New York, New Haven & Hartford Railroad Co., 227 Mass. 168, 173, 116 N.E. 546 (1917), app. dis. 247 U.S. 526 (1918) (dictum). Petitioners submit that there is no reported case in which a witness has ever been allowed, on the pretext of testifying as to his motives, to have offered his own uncorroborated opinions as to whether the defendants committed certain hein: ~ acts, the commission of which is susceptible of logical and rational proof. Indeed, if such testimony were allowed, it would be extremely perilous for counsel ever to cross-examine a witness as to his self-interest in testifying in a certain fashion, for then, in any type of case, a witness so impeached could testify to his opinion that the accused was guilty of the most lurid and in the proceeding. The latter “motives” really represent a bias or hostility on the part of one who becomes a witness and go to the weight of his testi- mony. Commonwealth v. Putnam, 2 Allen, 301 (1861). In the case at bar, the Commonwealth without objection introduced voluminous evidence tending to show petitioners’ alleged motives for wanting Deegan killed, but this evidence is not here in issue. 24 revolting conduct imaginable, and offer that opinion as his motive for testifying. We do not understand that the law of Massachusetts countenances so absurd an anomaly to the rule prohibiting a witness from giving his opinion as to the state of the facts. Commonwealth v. Ross, 339 Mass. 428, 435, 159 N.E. 2d 330 (1959), and cases cited. The exception suggested by this case would soon swallow up the rule. As Wigmore, op. cit. pp. 511-512, notes: “When to a witness is imputed hostility to the opponent, the true process of explanation consists in showing that the facts offered do not really indicate the conclusion suggested, i.e. the hostility.* Thus, when the counter- evidence does not attempt to do this, but admits the hostility and desires to show that it was justifiable by the opponent's conduct, the offer is improper in two ways, first, because it does not at all explain away, but concedes that hostility exists, and secondly, because it tends to prejudice unfairly the cause of the opponent by showing him to be an unjust man. For these reasons such evi- dence may be excluded: 1852, Johnson, C.J., in Cor- nelius v. State, 12 Art. 801: ‘A long and tedious detail by the witness of the numerous charges which he has heard against the accused could not aid the jury in the least possible degree in their deliberations, as they could not thereby ascertain the extent of his prejudice... . The question for the jury to determine is not what it is that constitutes the basis or foundation of the feeling or prejudice that may be entertained by the witness towards the accused; but on the contrary, it is as to the existence *In this context, as the quotation from Cornelius, infra, indicates, Wigmore obviously uses “hostility” interchangeably with “prejudice.” Fn. that of petitioners’ counsel. 25 of such prejudice. ... In this case the effect of ihe re- examination was to disclose the defendant's general character, and that too by particular acts.’” The Commonwealth’s argument in the Supreme Judicial Court that testimony concerning the deaths of Bratsos and DePrisco was admissible had a curious inconsistency to it. On the one hand the Commonwealth conceded that there “was no suggestion that the defendants as individuals were responsibie for the deaths of the per.as named,” whereas on the other hand it argued that “the deaths did tend to corrobor- ate the testimony of Baron” as to motive (Bf., 72). If peti- tioners as individuals were not responsible for the deaths of Bratsos and DePrisco, what “motive” did Baron, on the basis of his own alleged beliefs, have to incriminate them? Although this issue was the subject of a valid exception and assignment of error, was briefed in both the original and the reply briefs of petitioners and had been called to the Supreme Judicial Court's attention on request for rehearing, its opinion ignores it entirely. The opinion of the Court of Appeals, wherein the issue was also briefed, does likewise. But peti- tioners have nevertheless exhausted their state and federal remedies and cannot be precluded from raising the constitu- tional issues here. The introduction of evidence tending to make petitioners murderers of Bratsos and DePrisco, crimes with which they were not charged, was of no probative value and violated petitioners’ Sixth Amendment right to be informed of the charges against them. Cole v. Arkansas, supra. 26 C. The Cosa Nostra Question (Applicable Directly to Petitioner Limone and Indirectly to All Petitioners). On direct examination, petitioner testified that he fre- quented a club or “hangout” in the North End of Boston known as the Doghouse (Tr. 45, 6180). On cross-examination, the prosecutor asked Mr. Limone (Tr. 45, 6283): “Was it not true, sir, that in the year of 1965 the Dog- house was a meeting place for the Cosa Nostra?” Petitioner answered in the negative before counsel had an opportunity to object. No proof was ever adduced that the Doghouse was anything other than wh1t petitioner described. Random House Dictionary of the English language (Un- abridged Ed.), p. 329, defines “Cosa Nostra” as follows: “A secret organization engaged in organized crime in the United States modeled after and affiliated with the Mafia.” But no judge sitting in the year 1970 need consult a diction- ary to arrive at a workable definition of Cosa Nostra. Though no one has proven that such an organization exists, though indeed its existence is doubted by many sophisticated law enforcement agencies, as the judge himself noted in this case, Cosa Nostra has become a synonym for “organized crime” (Tr. 45, 6317). It is of no substance that petitioner answered this question in the negative. No matter how the question was answered, the damage was done. By being called upon to answer the question at all, the witness was forced to admit (a) that the Cosa Nostra existed and (b) that he was, if not a 27 member, at least someone sufficiently familiar with it to know where it met. Petitioner had a right under the Sixth and Fourteenth Amendments to be informed of the nature of the accusation against him. After this question, Peter Limone was no longer on trial for being an accessory to the murder of Ted Deegan or for conspiring to kill Deegan and Stathopoulos. Rather, he was on trial for being part of “organized crime,” for being an evil man with evil associates. It is not necessary to string out citations of cases to show that no such crime is known to our law. Cf. Lanzetta v. New Jersey, 306 U.S. 451 (1939). Curative instructions were sought (Tr. 45, 6315), but none were given. However, in this instance, curative instructions would probably have served only to emphasize the error, not to correct it. The error here, we submit, was of such magni- tude that a mistrial (refused by the trial court) was the only realistic cure. Krulewitch v. United States, 336 U.S. 440, 453 (1949) (concurring opinion). The Supreme Judicial Court observed that questions about the ™oghouse “may have had relevance . . . in view of Baron’s testimony about meeting Limone near that place” (357 Mass. at 40’). Indulging the court in giving the widest possible scope to the doctrine of “relevance” (cf. Ciucci v. Illinois, 356 U.S. 571, 573 (1958)), we assume that questions about the Doghouse, in so far as they pertained to meetings between petitioner and Baron or any other meetings pertinent to the crimes on trial, could be asked and answered. But the ques- tion here in issue had no such pertinence. The Supreme Judicial Court also observed that the question was answered in the negative. Of course it was, but as we have already noted, by this time the damage was done. See Douglas v. Alabama, 380 U.S. 415, 419 (1965). In a different setting the Supreme Judicial Court has had no problem seeing how cross-examina- tion of this type tends to “poison” a jury. As it said in Com- 28 29 monwealth v. Homer, 235 Mass. 526, 535-536, 127 N.E. 517 evidence was introduced to discredit the defendant as a (1920): witness by showing his conviction of a crime, this fact “The defendant's secretary and bookkeeper was exam- ined by the district attorney as follows: “Don’t you know, Miss Montgomery, and didn’t Mrs. Wilbur when you went out there to that hotel tell you, that the reason she sent for you was because the federal authorities were following her up to find out that Homer had been selling dope?” She replied in the negative, and although the defendant objected and excepted, the district attorney was again permitted to ask, ‘Didn’t she [Mrs. Wilbur] say some authorities were investigating the sale of dope by Homer?’ Answer: ‘No, sir.’ And after other questions bearing on this matter had beer put and answered, the question was asked, ‘Did Mrs. Wilbur at any other time except those occasions about which we are now talking, your visits after Homer had left, say anything to you about being inquired of as to Homer’s selling dope?’ to which she answered, ‘No, sir.’ Further inquiries were made bearing on this subject. The attention of the wit- ness was then directed to a message referred to in a tele- gram sent t- the defendant at Chicago, and she was asked, ‘Was. t that message relating to the matter of the authorities being after Homer for selling dope?’ This was objected to and the witness answered, ‘No, sir.’ There was no evidence whatever to support the intimations contained in these questions. What we have just said in discussing the previous exception applies with equal if not greater force to this question. It was an attempt by unfair means to belittle the prisoner and render him un- worthy of respect or credit. We can conceive of no rea- son prompting these questions except the desire to discredit him. Even if the charge were true and the could be shown only by the record.” D. The Loan-Sharking Question (Applicable to Petitioner Limone). On cross-examination petitioner Peter Limone was asked questions tending to show that he had engaged in loan- sharking. Any loan-sharking that petitioner may have engaged in involved “transactions irrelevant to the issue on trial.” Jones v. Commonwealth, 327 Mass. 491, 494, 99 N.E. 2d 456 (1951). In truth, this line of questioning stands in naked violation of the principle set forth in Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E. 2d 896 (1947): “Fairness to a defendant in a criminal case requires the rule that the commission by him of an independent crime cannot ordinarily be shown as evidence tending to show the commission of the crime charged.... It does not follow that, because the defendant committed a similar offence on another occasion, he committed the crime for which he is being tried. And there is the danger that, because a defendant appears to be a bad man capable of, and likely to commit, such a crime as that charged, a jury might be led to dispense with proof beyond a reasonable doubt that he did actually commit the crime charged. Moreover, it is not fair that a defendant in the course of a trial should be called upon to defend himself against accusations not set forth in the indictme:t.” (Citations omitted. ) 30 The same rule applies to conduct that is, although not criminal, held in low esteem. Commonwealth v. Homer, supra, 535 (bankruptcy). In the present case, the Supreme Judicial Court seemed to feel that the testimony was material on some theory of retalia- tion; whether petitioner was the same type as his lawyer described Baron to be (357 Mass. at 404). Petitioner is aware of no case holding that improper examination of one witness as to previous misconduct justifies the cross-examination of other witnesses to show that they had engaged in similar types of misconduct. The intimation of American Woolen Co. v. Boston ¢ Maine Railroad, 190 Mass. 152, 156, 76 N.E. 658 (1906), is to the contrary. But even if there were such a doctrine, it would have no application here, where Baron's loan-sharking was brought out by the Commonwealth on direct examination (Tr. 28, 3217), giving petitioner a clear right to cross-examine him thereon. E. Questions About Limone’s Friends (Applicable to Petitioner Limone ). Over objection and exception the prosecutor was allowed to ask petitioner Peter Limone: “Tell me some of the other people that you hung around with there in the year of 1965” (Tr. 45, 6282). The seeming purpose was to permit the Commonwealth to show that the defendant was a friend of Gennaro Angiullo, “[{then] recently acquitted [after a long murder] trial ‘during which he had been portrayed in the Boston press as a leader of the underworld’” (357 Mass. at 401). This type of question is constitutionally offensive for two reasons. First of all, it attempts to show guilt by associa- tion. Scales v. United States, 367 U.S. 203, 224-225 (1961). Secondly, it attempts to impose an improper burden upon the 31 exercise of a basic constitutional right, freedom of, and privacy in, association. Konigsberg v. State Bar of California, 353 U.S. 252, 270, 271 (1957); National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 430-431 (1963). The names of petitioner's friends and asso- ciates bore no relevancy to any matter put in issue by the indictments. Petitioner was not charged with having notori- ous friends, if indeed such a charge could pass muster under the First Amendment. F. Questions About Petitioner Grieco’s Domestic Diffi- culties (Applicable to Petitioner Grieco). During cross-examination of petitioner Grieco, the Common- wealth over objection and exception (Tr. 6551) was permitted to inject into the trial a series of allegations contained in a civil complaint brought against him in Florida by his wife. Mr. Grieco was asked whether his wife had alleged that he had been absent from home for periods of up to two or three months; had failed to notify her of his “whereabouts”; would become extremely angry and argue with her and shout at her and call her names; that she was in constant fear of personal injury and was in constant nervous apprehension; that his actions caused her to become physically ill, caused her to be unable to sleep, caused her to lose weight and rendered her unable to continue the marital relation (Tr. 6660). Compare Douglas v. Alabama, supra. The Commonwealth argued that the evidence was admissi- ble (1) with regard to “the timing of this man being in Florida,” (2) “to impeach his credibility with regard to where he was living” and (3) to contradict petitioner’s testimony that he was “in no trouble” while in Florida (Tr. 6652, 6653). 32 The Commonwealth’s position was untenable. The witness, in his direct testimony, had admitted that in the month of January, 1965, he did have “domestic difficulties” (Tr. 6605). The Commonwealth introduced no evidence to show that the hearsay was material to the time petitioner was in Florida, when he returned to Boston, or in impeachment of where he was living while in Florida (Tr. 6652, 6653). Although the prosecutor promised this evidence was going to show that “this man was up to his ears in trouble” (Tr. 6652), the evidence failed to indicate that he was in any more trouble than he had previously admitted to when he testified that he had “domestic difficulties.” The allegations contained in petitioner’s wife's bill of complaint had no place in this murder trial. The trial court also permitted cross-examination of Mr. Grieco concerning his knowledge of statements that his wife had allegedly made to the Florida police. Petitioner denied all such knowledge. Incorporated in questions, permitted by the trial judge over defense objections, were the prosecutor's suggestions that petitioner knew that his wife had “com- plained” to the Florida police that petitioner “had come into her house and put an extension cord around her neck and tried to kill her” (Tr. 6686) and knew that his wife “told the police at that time [he] took out a pistol from [his] jacket and .. . said, ‘If you leave me, I will shoot you’” (Tr. 6686, 6687). The Commonwealth persuaded the trial court that the evidence was being offered not for “tiie truth of the matter,” but for petitioner's state of mind (Tr. 6685) and told the court that “at the right time” it would “offer the proper evidence” (Tr. 6686). At no time did the Commonwealth offer evidence from which the trial jury could infer that petitioner knew his wife made these statements to the Florida police. As a matter of fact, the Commonwealth introduced no evidence that the facts themselves were true. 33 Petitioners individually and collectively were not charged with killing anyone named Bratsos and DePrisco or with cruel and abusive treatment of Mrs. Grieco or with making illegal loans or with being part of criminal syndicates or with having notorious associates. They recognize that in a criminal case evidence that the accused committed an unrelated criminal offense is not excludavle if the evidence has some probative value in the case on trial. Commonwealth v. Chalifoux, 362 Mass. 811, 815-816, 291 N.E. 2d 635 (1973), and cases cited. But here the evidence was virtually of no probative value and served only to inflame the jury against them. Under Estelle v. Williams, 96 S. Ct. 1691, 1692-1693 (1976), a trial tainted by such evidence does not result in a constitutional conviction. We cannot agree with the Court of Appeals that such rulings as these, cumulatively taken, “do not rise to constitutional dimensions” (Opinion, p. 8). The introduction of evidence “so irrelevant [and] so inflammatory” indeed raises a due process issue. Moore v. Illinois, 408 U.S. 786, 800 (1972). III. Perrrioner Cassesso’s RIGHTS UNDER THE FIFTH AND StxtH AMENDMENTS WERE VIOLATED BY THE ADMISSION OF INCRIMINATING STATEMENTS ELICITED AFTER HE HAD BEEN INDICTED AND HAD RETAINED COUNSEL — MASSIAH v. UNITED States, 377 U.S. 201 (1964). In view of the rulings of the Supreme Judicial Court and of the Court of Appeals on this point, we deem it advisable to restate the factual situation with regard to the events as to which Robert Glavin testified. Petitioner Cassesso was indicted for being an accessory on October 25, 1967, and on the same date for two conspiracies to commit murder (R. 375, 397). On November 17, 1967, an appearance was filed on Mr. Cassesso’s behalf by counsel. Early in November, 34 1967, one Ventola allegedly approached Glavin about “cop- ping out” (i.e., falsely confessing) to the Deegan murder (Tr. 40, 5388). Ventola offered Glavin cash (to be held in escrow) and other emoluments in return. Glavin then reported his conversations with Ventola to the F.B.I. agent Hanlon, who told him to speak to petitioner Cassesso as if he were ready to cooperate in the “cop-out” (Tr. 41, 5415, 5437). It was Glavin who approached Mr. Cassesso, not vice versa as suggested in the opinion of the District Court (Tr. 5415, 5437). Contrary to the statement in the opinion of the District Court, Glavin spoke to Mr. Hanlon before he spoke with petitioner (Tr. 5436-5437). Thereafter, in Decem- ber, 1967, Glavin contacted and spoke with petitioner in prison, holding three conversations with him at all (Tr. 41, 5564-5582). In the course of these conversations, petitioner allegedly repeated Ventola’s offers, embroidering and condi- tioning them with the passage of time. It is undisputed that in December, 1967, and thereafter, counsel was unaware of these conversations between petitioner and Glavin, who was permitted to testify at trial about his conversations with peti- tioner. Petitioner argued that this testimony ought not to have been received under the plain holding of Massiah, and both the Supreme Judicial Court and the Court of Appeals offered several reasons why Massiah should not apply. The Supreme Judicial Court was obviously correct in holding that the Commonwealth could take “reasonable efforts to protect the public interest and an individual from a new crime” (357 Mass. at 387). Such efforts could include counsel- ling Glavin to refuse Ventola’s o.fer or, if necessary, moving Glavin or Ventola to a new place of confinement. We assume even further, for the sake of argument, that if petitioner's alleged conversations with Glavin constituted a separate crime, respondent could introduce the conversations at the trial of petitioner for that crime. See Hoffa v. United States, 385 35 U.S. 293, 307-309 (1966); United States v. Missler, 414 F. 2d 1293, 1302-1303 (4th Cir. 1969). But here the evidence in question was received solely as an admission against interest to show consciousness of guilt. Commonwealth v. Wallace, 123 Mass. 400 (1877). This admussion had been elicited by Glavin upon express orders from an F.B.I. agent. Why and how there can be any distinction for Massiah purposes between an admission of direct guilt and an admission that shows mere consciousness of guilt, no court has yet even tried, much less been able, to explain. The rights which Massiah seeks to uphold, the Fifth Amendment privilege against self-incrimina- tion and the Sixth Amendment right to counsel, are surely as applicable to one type of admission as to the other. The opinion of the Court of Appeals dealing with the Massiah issue (pages 4-8) has a curiously inconsistent and unsettled ring to it. First, the court asks whether Massiah should not be distinguished because, in the case at bar, the person who caused the elicitation of the incriminating state- ments, F.B.I. agent Hanlon, did not work for the government of the Commonwealth, which of course had indicted peti- tioner. We submit that to allow this distinction to stand would effectively nullify Massiah by reviving the old and now thoroughly discredited “silver platter” doctrine. Elkins v. United States, 364 U.S. 206, 223 (1960). The suggestion of the Court of Appeals that Hanlon or Glavin or both may not have known the crime for which petitioner was under indict- ment is without foundation. For one thing, upon Glavin’s own testimony Ventola had already told him about the crime, and Glavin had essentially told agent Hanlon what Ventola had said to him. Moreover, as agent Hanlon had been active in pre-trial investigations of cases somewhat related to this (see Patriarca v. United States, 402 F. 2d 314 (1st Cir. 1968)), it is exceedingly unlikely that he was unaware that petitioner was under indictment for the murder of Ted Deegan. In any 36 event, where the question of right to counsel is raised, and where petitioner has made a prima facie showing that such rights were violated, the burden, we submit, was on the government to show lack of knowledge of the indictment. See Carnley v. Cochran, 369 U.S. 506, 514-515 (1962). The opinion of the Court of Appeals next suggests that Massiah may be inapplicable because in the case at bar the investigation involved a new and separate crime, subornation of perjury. There is, to begin with, considerable doubt about the correctness of the underlying proposition. On what Ventola had allegedly told Glavin at the time Glavin ap- proached agent Hanlon, Ventola probably could have been indicted for subornation of perjury. That, of course, is entirely a state crime which would have been prosecuted in the state courts. On the other hand, and this we cannot emphasize enough (cf. fn. 1, page 5, of the opinion of the Court of Appeals), when Glavin went to see Hanlon and was told by Hanlon to interview petitioner, he had never had any conversations with petitioner at all. Thereafter it was Glavin who sought out petitioner and not petitioner who sought out Glavin (Tr. 5439). There was, therefore, no crime to investi- gate until Glavin, acting on the specific recommendation of agent Hanlon, talked to petitioner. Moreover, although both the Supreme Judicial Court and the Court of Appeals refer to “good faith” investigations by the government, there was no evidence of such “good faith” and indeed there is considerable reason to doubt it. Where subornation of perjury is entirely a state crime, why was the F.B.I. involved in investigating it at all? Was it merely in the hope that, given the weakness of the Commonwealth’s case at petitioner's trial for the murder of Deegan, an elicitation of an admission against interest from one of the defendants by a federal officer might render the statements admissible at trial? The Court of Appeals assumed that the government's intention 37 was not “to obtain testimony against Cassesso for use at the trial for Deegan’s murder” (p. 7). But there is absolutely nothing in the court’s opinion or in the record to support such a finding. In this respect, this case is totally different from that of Hoffa v. United States, supra, where the informer- witness, Partlin, found out about the alleged crime when he penetrated defendant’s quarters and counsel but apparently played no part in causing it to be committed or in committing it. Finally, the Court of Appeals recognized that in both Hoffa v. United States, supra, 308, and United States v. Missler, supra, 1302-1303, it was indicated that while evidence obtained in violation of Massiah and showing commission of a separate crime might be usable in the trial of that crime it was not usable in a trial of the crime for which the accused was already under indictment when the Massiah violation oc- curred. The Court of Appeals, however, seemed to view this distinction as insubstantial. We submit that it is not. The purpose of the distinction is prophylactic; the knowledge that admissions against interest elicited after the accused has been indicted and his counsel has been retained cannot be used at the trial serves as a deterrent from the elicitation of such state- ments since not only will they be excluded at trial but also, under the fruit of the poisonous tree doctrine (Nardone v. United States, 308 U.S. 338, 341 (1939)), evidence indirectly obtained as a result of such an elicitation may also be excluded. IV. Perrrrioners WERE DEPRIVED OF THE RIGHT TO PRESENT EvmipENCE AND Cross-EXAMINE PROPERLY AND EFFECTIVELY THE COMMONWEALTH’S WITNESSES. A. Examination on Voir Dire. Since Glavin (see argument III, ante) testified as to certain admissions of petitioner Cassesso, the judge quite properly held 38 a voir dire to determine their admissibility (Tr. 40, 5406). Jackson v. Denno, 378 U.S. 368, 378-385 (1964). On the theory that Glavin’s testimony was admissible only against Cassesso, the court denied other counsel the opportunity to cross-examine Glavin on voir dire (Tr. 40, 5469). The Supreme Judicial Court upheld the trial judge, finding no abuse of discretion (357 Mass. at 402). We suggest that, from a Sixth Amendment standpoint, the Supreme Judicial Court is clearly in error. “[T]o deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amend- ment’s guarantee of due process of law.” Pointer v. Texas, 380 U.S. 400, 405 (1965), and cases cited. “‘[A] denial of cross-examination without waiver . . . would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3.” Smith v. Illinois, 390 U.S. 129, 131 (1968). The sole question is whether other petitioners had any cognizable interest in persuading the judge to exclude Glavin’s testimony. Rather obviously they did. Petitioners and Cassesso were charged with two conspiracies. To begin with, the judge charged the jury that “anything that any member of the conspiracy does or says in furtherance of the conspiracy binds all of them, all of them” (Tr. 51, 7481). Secondly, despite the severe limitations which the judge placed on the cross-examination of Glavin by petitioner Cassesso’s counsel (see Argument IV, B) after he ruled the testimony admissible the jury could not fail to infer that Mr. Cassesso would have had aid from friends with the alleged “cop-out” plan. Who were these friends more likely to be (in the minds of the jurors) then those who, like the other petitioners, were supposed to have had the greatest interest in Glavin’s cop-out? 39 B. Cross-Examination of Glavin. We come now to what may well be the most grievous single evidentiary error committed by the trial judge in the course of this trial. The defendant’s right in Massachusetts to cross- examine a witness on prior inconsistent statements made to the grand jury is settled. Commonwealth v. Homer, supra, 532-533. The right to impeach a witness by showing prior inconsistent statements is elementary. United States v. Hannon, 105 F. 2d 390, 391 (3d Cir. 1939), cert. den. 308 U.S. 594 (1939). In the trial of a criminal case, it is constitu- tionally guaranteed. Petitioner Cassesso tried to show in cross-examination of Glavin that Glavin, while under oath before a grand jury (not the grand jury that returned these indictments), gave testi- mony substantially conflicting with the testimony he gave on direct examination at petitioner's trial. On direct examina- tion, Glavin testified that petitioner told him (Glavin) that he (petitioner) had checked Glavin out, that he (petitioner) would pay Glavin $50,000 for the cop-out, and that he (petitioner) would arrange parole or commutation for Glavin. Before the grand jury, Glavin had testified that “the office” would do these things. The use of the grand jury testimony on cross- examination would have served two purposes: first, that of impeaching Glavin generally by showing prior inconsistent statements, and, secondly, that of undermining Glavin’s specific testimony at the trial by (hopefully) getting him to adopt his earlier statements over his direct testimony. The opinivn of the Supreme Judicial Court and that of the Court of Appeals misstate the issue.’ Petitioner Cassesso did not ” “Cassesso’s counsel had obtained from another Superior Court judge Glavin’s testimony before a Norfoik County grand jury in connection with indictments of Cassesso and others for attempting to get Glavin to commit 40 contend before the Supreme Judicial Court that he should have been allowed to introduce the grand jury minutes into evidence without proving them in due course (Opinion of Court of Appeals, pp. 8-9). His arguments rather were and are that the judge erred in refusing (a) to allow petitioner to ask Glavin whether he had made specific prior inconsistent statements to the grand jury (Tr. 41, 5652-5661; 5682-5683) and (b) to allow petitioner to ask Glavin whether he had not at another time (without reference to the grand jury) stated that someone other than petitioner (viz., the office) had “checked him out” and was going to furnish money and other consideration that were to be Glavin’s reward for “copping out” (Tr. 41, 5571, 5598, 5608, 5624-5625, 5655, 5657, 5659; 42, 5734). As to the former point, Massachusetts law has never required that a party desiring to show on cross-examination a prior inconsistent statement under oath by the same witness even produce a transcript, much less a duly proven transcript, of the proceedings at which the inconsistent statement was made. D & P Equipment Corp. v. White Spot Construction Corp., 355 Mass. 787, 788, 243 N.E. 2d 922 (1969). If we assume that Massachusetts could constitutionally impose such a requirement at all, it could not nevertheless impose it suddenly and without warning for purposes of this case. National Association for the Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449, 456-457 (1958). perjury. Cassesso’s counsel was permitted on various occasions to use these minutes (marked for identification) to refresh Glavin’s recollection. He was not allowed to use the minutes themselves to show Glavin’s prior inconsis- tent statements, unless and until he proved the minutes in usual course. The judge permitted wide questioning about the prior statements. Cassesso’s counsel did not make an attempt to prove, through the stenographer or otherwise, any prior inconsistent statements before the grand jury. He cannot now complain.” (357 Mass. at 402.) 41 As to the latter point, that Glavin had earlier said that the “office” was going to pay for the “cop-out,” obtain a reduction in Glavin’s sentence, and do other things for Glavin — this was not a collateral issue. Glavin’s testimony, as already noted, had been admitted on the consciousness of-guilt-theory. If Mr. Cassesso had said that he himself would get Glavin’s sentence reduced after Glavin “copped out,” it would have been absurd, for here was Mr. Cassesso on trial for his life. If he had said that someone else would do it, exploration of the question of “who?” might well have shown that the conversation never took place. In any event, the Common- wealth having fully opened up this subject on direct examina- tion (Tr. 41, 5567), it is elementary that petitioner had the right to cross-examine thereon. Wills v. Russell, 100 U.S. 621, 625 (1879). The Supreme Judicial Court, although stating that it saw no need for the judge to have denied petitioner the right to ask Glavin questions which in answer would have involved the word “office,” saw no prejudice to petitioner (357 Mass. at 380). We submit that for the reasons already stated the Supreme Judicial Court was wrong about lack of prejudice but reiterate that “no amount of showing of want of prejudice would cure” the error in denying petitioner the right to cross- examine. Smith v. Illinois, supra. Parenthetically, we are led to remark that, though the rulings here in question would have been no less erroneous, it would have been commendable had the same attitude carried over to the questions and remarks of the prosecutor and of respondent’s witnesses. In fact, however, the prosecutor and his witnesses, particularly Baron, were allowed to refer to the “office” almost, as it were, in every other breath. Early in the trial the judge said (Tr. 29, 3285): “I think any connection with ‘the office’ [a code word for the underworld at least at this trial] has some- thing to do with this case.” We fear it would be mistaken to 42 imagine that solicitude for the rights of other petitioners prompted the judge to deny petitioner Cassesso his Sixth Amendment right of confrontation. V. THere was No ACQUIESCENCE BY COUNSEL OR BY PeETI- TIONERS IN THE SUBMISSION OF AN EX PARTE BRIEF BY THE PROSECUTOR TO THE JUDGE; THE SUPREME JUDICIAL CouRT HAVING CONSIDERED PETITIONERS’ ARGUMENT ON THIS POINT, tr WAS Property BerorE THE Districr Court ON PETITION ror Writ or Haseas Corpus. THE SUBMISSION OF SUCH A Brier Deprivep PETITIONERS OF DuE Process or Law. In the course of trial petitioners learned from an off-hand remark by the prosecutor to the trial judge that the Common- wealth had been submitting briefs. Several attorneys then complained about not being served with copies of such briefs. The failure to give counsel copies of briefs was assigned as error in the original appeal to the Supreme Judicial Court, and the assignment was briefed. The opinion of the Supreme Judicial C custody in isolation in May, 1967, he started to to the district at + representatives in July, when “deals were being made”’; {d) that he told See eee ooty epee eek 8 on See Se story he told at ial until September 8, 1967; or before the grand jury; and (e) that he first i j mn the Deegan murder in October, 1967. The . ial judge put at disposal of defence counsel certain grand jury testimony concerning the date when Baron had thought that he had obtained his “con- tract” from Limone. Baron was cross-examined about this and also extensively about the dates of his Florida trip which he had thought was at a different time until shown an airplane ticket, apparently not produced until after his grand jury testimony. 160 357 Mass. 356 379 Commonwealth v. French. ments, made in the absence of one or more of the defendants, without limiting the evidence to the declarant and persons present. In Massachusetts, under “‘a conspiracy indictment, the acts and declarations of one conspirator in pursuance of the common object are admissible against the other conspirators. . . . [Before the acts and declarations of one are admissible against the others,” the judge must make a preliminary finding upon evidence aliunde that a conspiracy exists. Commonwealth v. Stasiun, 349 Mass. 38, 50. By the end of Baron’s direct testimony, an adequate showing of con- spiracy ” had been made, for Baron’s testimony included accounts of conversations with, and admissions to him by, each defendant, which permitted a finding that the defendant was a member of conspiracies to kill Deegan and Stathop- oulos. Baron was, according to his testimcn;, the central figure of each conspiracy. Each defendaut could be found to have conspired at least with him. As 4 consequence, at least as early as the end of Baron’s testimony, out-of-court state- ments of defendants were admissible, against all members of the conspiracy, if the statements were in furtherance of a still continuing conspiracy. The trial judge, in his charge, explained his action with respect to out-of-court statements by the several defendants, 7 See Commonwealth v. B. 290 Mass. 125, 132-133; Commonwealth v. Kiernan, 348 Mass. 29, 57-58. also cases collected in Toomey, Some Procedural Aspects of the Prosecution of a Conspiracy in Massachusetts. 53 Mass. L. Q. 207, 240-242. No clear determination (see fn. 14) that there was a prima facie case of conspiracy appears on the record. During Baron’s direct testimony, such a determination was postponed. Counsel at one t reminded the judge in a bench conference that such a ruling had made “in chambers” but that it had not been “told... to the jury.” Defence counsel successfully objected to wey Lb j inform the jury of his ruling during trial, altho he could have done so. C ; v. Rogers, 181 Mass. 184, 191. judge i cted in the course of trial that any conspiracy “ended . . . sometime in the end of 1965 or 66. Once the alleged conspiracy [ended], if you believe there was a : — I'm not saying there was — any satan ene See ee him, if yuu believe the evidence, and is not admissible against the o (emphasis supplied). As an alternative to the procedure described in the passage quoted from the Stasiun case, 349 Mass. at p. 50, such evidence from a coconspirator may be admitted with the tion that a particular defendant will be linked to the conspiracy and subject to his motion to strike the evidence if the link is not established. See Commonwealth v. Kiernan, 348 Mass. 29, 56-58. 161 380 357 Mass. 356 Commonwealth v. French. testified to by Baron and others. He said, ‘‘At first I allowed evidence of the action of one person only against him and not . . . against the other defendants. Then the second man, and the third man, the fourth man, until / found enough evidence to submit to you whether there was a conspiracy or not, and I so told the lawyers [see fn. 27], that I found sufficient evidence for the consideration of the jury of a conspiracy” (emphasis supplied). In discussing when a conspiracy ends, he added: ‘‘I say this because once there is a conspiracy in existence, anything that any member of the conspiracy does or says in furtherance of the objective of that conspiracy binds all of them .... But once the conspiracy is over, then what one does does not bind anyone else but himself.” Cassesso’s counsel excepted ‘‘to that part of the... [charge] where you said the acts and declarations of one bind all during the conspiracy because that was left up in the air .. . and I contend that it only applies to the conspiracy indictment and not to the substantive charges.” This exception was without merit. (1) There had been no re- quest when the evidence came in that it be so limited. See Runels v. Loweli Sun Co. 318 Mass. 466, 471. (2) A more important reason is that (emphasis supplied) ‘‘where there is proof . . . that two or more persons are engaged in a common criminal enterprise, the acts and declarations of one, during the enterprise and in furtherance of it, affect all.” Commonwealth v. Chapman, 345 Mass. 251, 255. See Commonwealth v. Tivnon, 8 Gray, 375, 381; Commonwealth v. Mulrey, 170 Mass. i083, 111; Runels v. Lowell Sun Co. 318 Mass. 466, 471-472; Wigmore, Evidence (3d. ed) § 1079; McCormick, Evidence, § 244, pp. 521-523; Mottla, Proof of Cases in Mass. (2d ed.) §§ 820-825. The evidence permitted the jury to find that the common enterprise of killing Deegan went (on the part of each defendant) beyond mere conspiracy. During Baron’s testimony prior to the time when a finding ¢* conspiracy or common enterprise would have been war- ranted, the trial judge limited the admissibility of certain 162 357 Mass. 356 381 Commonwealth v. French. statements by Baron concerning his conversations with particular defendants to those defendants (and other persons present at the respective conversations). As to the first conversation (that with Limone at his office near the “dog house,” B-1) the judge gave ample limiting instructions and some explanation of the reasons for them. Similar instruc- tions were given concerning Baron’s first talk (B-2) with Tameleo at the Ebb Tide Restaurant. Short limiting in- structions were given with respect to the defendants men- tioned in Baron’s talks, designated B-3, B-12, B-13, B-19, B-22, B-24. There appears to have been no possible viola- tion of the hearsay rule in the light of the limiting instruc- tions. Adequate limiting instructions were also given concerning two photographs, a talk with Tameleo, Cassesso, and Amico a few days after Deegan was killed, a talk with French and Mr. Farese on March 12 or 13, and a later talk - with Cassesso in Providence. As to some of Baron’s conversations, no limiting instruc- tions were given. Some seem completely harmless.* Con- cerning others no adequate exception was saved in behalf of any absent defendant. Exceptions were saved concerning other out-of-court statements, but no request was made at the time for limiting instructions.” See Commonwealth v. Giacomazza, 311 Mass. 456, 468; Commonwealth v. Fppich, 342 Mass. 487, 493-494. See Solomon v. Dabrowski, 295 Mass. 358, 359-360. Eventually, of course, the state of the testimony permitted the trial judge to admit against each of the defendants the statements of any defendant in fur- * Such conversations, barely referred to in the joint brief for Tameleo, Grieco, French and Salvati, include (see fn. 4) of conversation B-5 (the first of two talks with Grieco in Florida); and conversation B-8 (talk with Grieco, objections only to comments of judge on interruptions). ® These conversations include (fn. 4) part of B-5 (the second of two talks with Grieco in Florida) ; B-7 (objection only by Cassesso); B-14 ( i conference at Cassesso’s apartment; exception by Casseaso only); B-1 (one talk with French on March 12; no objection when first but an objection for Cassesso when later questions asked about this conference) ; B—17 (conference at Casseaso’s apartment); B-18 (same); B-21 (back room con- ference, Ebb Tide). * Such conversations included B-9 (Grieco and French at Ebb Tide); B-10 (French); B-—11 (Limone outside the “doghouse’’); the second reference to B-17 (French); B-23 (Limone, March 13, 1965). 163 382 357 Mass. 356 Commonwealth ». French. therance of (and during) the conspiracy or common enter- prise. We conclude that no prejudice resulted from any failure of the trial judge to limit the applicability of any such testimony given before a finding of conspiracy or common criminal enterprise would have been warranted. 9. During direct examination, Baron was asked (B-2, B-15) whether he would have proceeded with the plans con- cerning Deegan and Stathopoulos, if Tameleo had not authorized him to do so. Baron, subject to exception, answered in the negative. Baron had already given Tameleo notice (B-2) that, “if you don’t okay it, I won’t do it.” The question concerning Tameleo’s “okay” of killing Stathopoulos referred to ‘‘this Deegan matter.’”’ The an- swers thus did not relate to any state of mind of Baron not communicated to Tameleo. They also were in part cumu- lative explanation of Baron’s request for approval. Even if the jury should have been left to infer Baron’s intentions (not directly in issue) from what he actually said, the answers added little. Any error was harmless. See Com- monwealth v. Burke, 344 Mass. 243, 248; Wigmore, Evidence (3d ed.) §§ 581, 1963; Mottla, Proof of Cases in Mass. (2d ed.) § 1201. 10. Stathopoulos testified to out-of-court statements by defendants and others, including some by Baron after the conspiracy had ended. (a) Stathopoulos told about talks on March 12, 1965, with Deegan and one Moore about plans for their proposed break. No defendant was present. The judge erroneously admitted this testimony as res gestae. See Rocco v. Boston Leader, Inc. 340 Mass. 195, 196. See also Commonwealth v. Hampton, 351 Mass. 447, 449-450; Anderson, Wharton’s Criminal Evidence (12th ed.), §§ 279-282. The talks about plans were in large part consistent with French’s later testi- mony (about the actual events of March 12, 1965, as carried out) in which he admitted that he was at the alley. Conversations with Deegan when French was present were reasonably related to and in furtherance of the alleged common criminal enterprise. There was no prejudice. 164 357 Mass. 356 383 Commonwealth v. French. (b) Stathopoulos testified that, about September 8, 1967, at his own request he had talked to Baron at the Barnstable County jail in the presence of two F.B.I. agents and others. Baron then told Stathopoulos that he had planned to kill him, that “‘it was the office that wanted . . . [Stathop- oulos] knocked off,” and that it was he [Baron] who had tried to nave Stathopoulos poisoned. Stathopoulos also testified that, at Charles Street jail, Baron had told him that if he held ‘“‘any animosity toward ... French. . . other people will have to take action.” These conversations were after the conspiracy had ended. Baron had been cross-examined about the attempt to poison Stath noulos, about his conversation at Barnstable with Stathopoulos, and about his motives for testifying. There had been some suggestion in the cross-examination that Baron’s testimony might have been influenced by his brief talk with Stathopoulos. The trial judge acted within his discretion in permitting Stathopoulos to tell about the Barnstable talk, to explain the nature and »revity of the meeting, and to contest any suggestion of contrivance more recent than the date of the talk in September, 1967. See Commonwealth v. Tucker, 189 Mass. 457, 479-485; Common- wealth v. Retkovitz, 222 Mass. 245, 249-250; Commonwealth v. Williams, 244 Mass. 515, 520; Commonwealth v. Giacomazza, 311 Mass. 456, 469-470. The talk with Baron at Charles Street jail was largely irrelevant. There was no prejudice in either conversation. Later Cassesso called as his own witness Detective John F. Doyle of the district attorney’s office. He had been present at the Barnstable conversation and at an earlier talk on the same day with Stathopoulos alone, in which Stathopoulos had given information in some respects perhaps inconsistent with his later testimony. Detective Doyle, on direct exami- nation, testified that Stathopoulos, after he talked to Baron, ‘expanded on his original statement” about the Deegan matter. On cross-examination, the district attorney prop- erly was allowed to show (a) that there was no conversation at Barnstable about the facts of the Deegan murder and 165 384 357 Mass. 356 Commonwealth v. French. that the conversation was confined to describing various efforts to kill Stathopoulos “because he had too much knowledge concerning the Deegan affair,” and (b) that Detective Doyle had never given Stathopoulos “‘any in- formation . . . concerning” Deegan’s death or asked him to change his story. This cross-examination was appro- priate to rebut any inference from the direct examination of Detective Doyle that Stathopoulos’ testimony had been suggested in part by Baron at Barnstable. Questions AFFECTING GLAVIN’s TESTIMONY. 11. Robert Glavin (see Commonwealth v. Glavin, 354 Mass. 69) testified that he had been confined at the Norfolk prison colony under life sentence for first degree murder. In November, 1967, Glavin was approached by one Ventola at the prison hospital where Glavin was an orderly. As a consequence, Glavin talked with Cassesso. The judge promptly ruled that these conversations could ‘‘be used or considered . . . only against . . . Cassesso and against no one else.” Casseaso was then “camp chairman” at the colony. These was on eatencive vale Gon, at the request of Cas- sesso’s attorney. During this, Glavin testified that Ventola had told him that the “‘office” wanted Glavin ‘‘to cop out”’ (i.e. wrongly confess to) the Deegan murder, for which, Glavin was told, Cassesso had been indicted. Glavin “had worked for them before.” In return they would (1) pay him $50,000 (to be handed to someone, not in prison, chosen by Glavin), (2) “‘take care of. . .[Glavin’s|kids. . .and.. . [3] see if they could do something with the parole board for” him. They were going to “school” Glavin in the facts of the Deegan murder. Glavin testified that he was not merely ‘“‘asked’’ to con- fess to the Deegan murder but ‘‘was really told.” He “figured . [he] “was a patsy” for the “office.” He wanted help, spoke to a prison official, and arranged to see F.B.I. Agent Hanlon. Glavin told Hanlon he had been 166 357 Mass. 356 385 Commonwealth v. French. asked ‘“‘to cop out . . . and that . . . [he] didn’t want to do it ... that . .. [he] didn’t know what else to do.” Hanlon told Glavin “to go ahead like I was going along with it.” Thereafter Glavin talked with Cassesso alone and even later with one Lammatino (also known as Chong), Ventola, and Cassesso. At this talk, a somewhat modified offer (to put the $50,000 in escrow with a lawyer) was made. Glavin reported these talks to F.B.I. Agents Hanlon, Condon, and Rico. The F.B.I. agents told Glavin that they would ‘‘do their best to protect’? Glavin and his family. Thereafter, Cassesso, Ventola, and Lammatino told Glavin that “they wanted to make sure that they had something on him” so that he could not “‘turn around and... give testimony against them.’ For this reason, they wanted him “‘to make a hit’ on (i.e. kill) a ‘‘guy named McElaney.” They gave Glavin two days to make up his mind. A prison friend told Glavin that ‘this hit was just a set-up; they were going to make a move on” him. Thereafter Glavin (the object of other inmate hostility) was stabbed by an inmate not shown to be connected with Cassesso. There- after, for his own protection, Glavin was put in special cus- tody. On cross-examination Glavin conceded that his talks with Cassesso ‘‘were to get information ... about the Deegan matter,” and that he was “pretending to go along . . . [with the ‘cop out’ proposal] to get the information for the FBI.” After the voir dire, the judge concluded that Glavin had been ‘“‘approached to commit perjury, to admit ...a murder that he did not commit and [that] he . . . [had been] led to believe that it was not merely an offer but a threat and that if . . . [Glavin] didn’t go through with it . . . his own life would be imperiled.” ** The judge re- newed his instructions that the testimony was admitted only against Cassesso. Glavin then gave before the jury *1 Before the jury, Glavin quoted Cassesso as having asked what he thought about the “cop out” pro ition. Glavin asked, “Do I have a choice?” Cassesso “just smiled.’’ For discussion of the portion of the charge dealing with Glavin’s testimony see part 14 of this opinion, infra. VOL. 357. 25 Sc ne a tr 167 386 357 Mass. 356 Commonwealth v. French. essentially the same testimony as on the voir dire, except that, by explicit instructions of the judge, Glavin made no mention by name of the “office” or of Lammatino, Cassesso contends that this testixaony was inadmissible under Massiah v. United States, 377 U.S. 201. Massiah had been indicted on narcotics charges. He had a lawyer and had been released on bail. One Colson, whom Maasiah regarded as a confederate, permitted a government agent to install a radio transmitter in Colson’s automobile, so the agent could overhear incriminating conversations between Massiah and Colson. A majority of the Supreme Court held that Massiah’s “‘own incriminating statements” thus ob- tained ‘‘could not constitutionally be used . . . as evidence against him at his trial.”” The present circumstances differ from those in the Massiah case in various respects. (a) Before Glavin went to the F.B.I. at all, Ventola had told him essentially all the facts concerning Cassesso’s ‘cop out”’ proposal. The principal significance of Glavin’s direct conversations with Cassesso, after Glavin’s talk with Agent Hanlon, was to confirm Ventola’s authority to speak for Cassesso. Ventola’s original proposal in no way was affected by any later F.B:I. instructions to Glavin. In the Massiah case, the incriminating evidence was obtained only by the enticed radio-monitored automobile talk. Thus, Glavin’s talks with Cassesso were largely merely cumulative. (b) Colson (in the Massiah case) took affirmative steps, presumably to lessen his own punishment, to elicit the con- versations. Here Glavin was trying to protect himself from harm from Cassesso’s criminal action initiated before he went to the F.B.I. He merely allowed and reported the con- tinuance of Cassesso’s criminal efforts. There was no entrap ment. Cf. Commonwealth v. Harvard, 356 Mass. 452, 458- 461. Cassesso now relies on the reasonable measures, taken by the police to combat his own efforts to commit a further crime and to protect Glavin, as reasons for excluding evi- dence of those efforts as proof of his consciousness of guilt of the Deegan murder. 168 357 Mass. 356 387 Commonwealth v. French. We are reluctant to believe that the Supreme Court ma- jority in the Massiah case intended it to apply where public officers have obtained knowledge bearing upon old criminal conduct through reasonable efforts to protect the public interest and an individual from a new crime. Even an in- dicted defendant, in such circumstances, should be estopped to assert that the evidence cannot be used against him to prove the crime with which he is charged merely because he was not warned to have counsel present while he continued his criminal efforts to conceal that crime by obtaining the perjury of another.** We recognize that some cases interpret the Massiah case very broadly. See e.g. Hancock v. Wi.:te, 378 F. 2d 479, 482 (1st Cir.), which relies greatly on the Supreme Court’s per curiam reversal of State v. McLeod, 1 Ohio St. 2d 60, by McLeod v. Ohio, 381 U. 8. 356. See also United States ex rel. O’Connor v. New Jersey, 405 F. 2d 632, 634-638 (3d Cir.). Other decisions give the Massiah case limited application. See Davis v. Burke, 408 F. 2d 779, 782 (7th Cir.). See also Caton v. United States, 407 F. 2d 367, 373-374 (8th Cir.); People v. Milani, 39 Ill. 2d 22, 26-28 (fellow inmate but not a Federal agent at the time of an indiscreet disclosure by an indicted person); Anders v. State, 445 S. W. 2d 167, 170-172 (Tex. Cr. App.). In the unusual circumstances of Cassesso’s new criminal conduct, Glavin cannot reasonably be regarded as a government agent of the type considered in the Massiah and Hancock cases. 12. The judge, after the voir dire, instructed Glavin not to use the words “‘office,” ‘‘Cosa Nostra,” or “‘they,” in describing to the jury the persons responsible for, or con- nected with, the “‘cop out” offer. Because Glavin’s testi- ® The conduct of Glavin and the F.B.I. is not like that discussed in Miller v. California, 392 U. 8. 616 (see People v. Miller, 245 Cal. 2d 112, 141-144). The extent of Glavin’s knowledge of the Cassesso offer, before he spoke with pb ng istingui this case from situations aesumed in Hoffa v. ye State 388 3 8ya, 008-312, oF in United Slates ¥. Missler, 414 .ad - vin 308, 1302-1308 (4th Cir.)” ‘For our decisions dealing with the Afassiah 1 .). For our ns wi case naa & cake, ee oe See also Commonwealth v. Dougherty, 343 Mass. 299, 303-305; Commonwealth v. Sullivan, 354 Mass. 598, 609. Cf. Commonwealth, v. McCarthy, 348 Mass. 7, 11-12 (deliberate, direct 169 388 357 Mass. 356 Commonwealth ». French. mony was admissible only against Cassesso, the judge (per- haps from excess of caution) wished to avoid any possible implication against other defendants in any degree associated with the “‘office” by earlier testimony. We have already discussed (see part 1 of this opinion) Baron’s vague and general testimony about the “office.” There was no clear evidence about what it was or who be- longed to it. Baron’s testimony did suggest some repre- sentation of the “office” by Limone, and that Tameleo had a somewhat greater but wholly indefinite authority to speak for it. At most, the evidence implied that these men either participated in some work of, or took some orders from, a group of significant size engaged in unspecified criminal activities. We think that references to the “office,” not more specific than the few references during Glavin’s voir dire, would have had no necessary reference to Tameleo or Limone or to any other defendant. Glavin made no charge against any de- fendant, except Cassesso, by name. No individual was described as a member of the ‘“‘office.” See Patriarca v. United States, 402 F. 2d 314, 317 (1st Cir.). Had Glavin referred to the ‘‘office” in his testimony before the jury, it would have been pure conjecture that any reference to any other defendant was intended. Indeed, to show criminality based on mere membership, some degree of active and specific criminal participation in the organization’s activities nor- mally would be necessary. See Scales v. United States, 367 U. 8. 203, 224-228. Cassesso contends, however, that limitations (to prevent mention of the “‘office”) placed upon cross-examination unduly restricted his efforts to show Glavin’s testimony to be false or inaccurate, e.g. (a) whether Cassesso had offered to ™ One could hardly say that reference to the F.B.I. or the Internal Reven Service by itself refers to a particular employee of those agencies. If one joins, takes from, or works for an ill-defined organizatio 7 P the, “Cosa Nostra”) which may have incurred pul Recoeen ono sole will rub off on him. For a general discussion Le ds oom Shen gs Seiler ant to the American 53 J. of Cr. L., and Police 399; 54 Ibid. 1, 127 170 357 Mass. 356 389 Commonwealth v. French. - get Glavin’s sentence reduced and how he expected to per- form this; (b) who was to pay $50,000; (c) who wanted Glavin to “‘cop out”; (d) who had ‘‘checked” out Glavin; and (e) the precise contents of each conversation. It is con- jectural whether broader cross-examination would have suggested that it was unlikely that any payment for the “cop out” would be made, or that (if earned) the payments would necessarily have come from the same source as the $50,000 offered by Tameleo and Grieco to prevent Baron’s testimony. Cassesso’s counsel did ask questions which raised some of these issues. Questions which might have elicited an answer that the ‘office’ supported the offers to Glavin were not allowed. The only relevance of the question- ing was to show that others than Cassesso had an interest in the offers. Such an interest was shown in any event * and diminished the tendency of the offers to disclose conscious- ness of guilt on the part of Cassesso. Although we perceive no necessity for the judge’s restriction, we see no prejudice. Mr. FirzGERALp’s TESTIMONY. 13. Mr. John Fitzgerald’s testimony has already been summarized. He had represented Baron in early 1967. After Baron’s codperation with government authorities be- came known, Mr. Fitzgerald’s automobile was bombed on January 30, 1968 (see fn. 5). News reports attached to the brief of Tameleo, Grieco, French, and Salvati show it to have been an unusually ruthless underworld atrocity. When Mr. Fitzgerald appeared to testify on July 19, 1968, the defendants asked that the jury be polled to determine whether they had any memory from news accounts of the attack on Mr. Fitzgerald. The trial judge reasonably de- clined to put any such question at this late stage of the trial. The lapse of time since the bombing was just eleven days *% Glavin was allowed to testify that Cassesso said that, with “a new ad- ministration or a new parole board,’’ an effort would be made, wy someone other than Cassesso, to get Glavin’s life sentence commuted. He was not permitted to sey who (presumably “the office”) was to do this. Similar} Glavin testified that Cassesso told him that someone other than himself pay the $50,000 but he was not permitted to say who that person was. 17] 390 357 Mass. 356 Commonwealth o. French. short of six months. Any inquiry would have called atten- tion to an irrelevant matter and created a risk of prejudice where there was to be (and in fact was) no attempt to show that any defendant was in any way responsible for the bombing. See Commonwealth v. Balakin, 356 Mass. 547, 554. See also Commonwealth v. Blackburn, 354 Mass. 200, 203-205. The Commonwealth cannot be precluded from offering Mr. Fitzgerald’s highly relevant testimony merely because some juror might suspect a connection between the de- fendants (all of whom were in custody on January 30, 1968) and the bomber. The case is unlike Commonwealth v. Crehan, 345 Mass. 609, 611-615, where news articles during a trial before a jury, not locked-up (as was this jury), gave indication that defendants had criminal records.** 14. Mr. Fitzgerald’s testimony of conversations with Tameleo and Grieco, in July and August, 1967, was orig- inally admitted against all the defendants. The judge, how- ever, concluded that there was no adequate evidence of a continuing conspiracy against Stathopoulos in July, 1967, and very clearly limited the testimony (fns. 8, 9) as admis- sible only against Tameleo and Grieco and not against others.** The judge, discussing in the charge these conversations, tried to combine in one sentence statements that Glavin’s testimony was to be considered only against Cassesso and Mr. Fitzgerald’s testimony only against Tameleo and Grieco. Efforts to correct possible confusion of names resulted in the charge being left, “[TJhe evidence was admitted solely against them —Grieco and Tameleo.... That was in vee Glavin’s testimony.” ‘The judge obviously was re- ferring not to Glavin’s but to Mr. Fitzgerald’s testimony. _* The articles here er = ed of, published over five ths trial, dealt principally with the attack on Mr. Fit vad, oat AQ rs the eee As ~~ LF beet er Fubean & a vo ‘ommonwea Mass. 580 581 (direct refe sage mw hey ( erence to sentence at Walpole * The j qualified his instruction by the words “unless and until are .” This did not restrict his adequate limiting SStecstien bes merely allowed for + ssibility that later testimony might render Mr. Fitzgerald’s testimony sdmissible against one or more other defendauts. 172 357 Mass. 356 391 Commonwealth ». French. No further exception was saved by any defendant and it would seem that all counsel (if not the stenographer) under- stood what the judge said as not being confusing. DENIAL OF DrRECTED VERDICTS. 15. Tameleo argues that, upon the evidence, he cannot be held as accessory before the fact to Deegan’s murder be- cause one who is only a conspirator is not guilty of the sub- stantive offence which is the objective of the conspiracy, and that, to be so liable, one must ‘‘ participate or aid in the commission of’’ the substantive offence. See Commonwealth v. Stasiun, 349 Mass. 38, 47-49. We assume that it is not possible to convict a defendant as an accessory before the fact because of mere acquiescence in the commission of a crime, without active participation as an actor by counsel- ling, aiding, and abetting. See Am. Law Inst., Model Penal Code, § 2.06 (3), Proposed Official Draft, 1962, at one time numbered § 2.04, Tent. draft, No. 1, 1953, pp. 11, 20-50; Anderson, Wharton's Criminal Law & Procedure, § 110, pp. 237-238; Perkins, Criminal Law, 575-578, 593. The offence of being accessory before the fact involves ‘counselling, hiring or otherwise procuring.” See G. L. c. 274, §§ 2, 3 (see later amendments by St. 1968, c. 206 §§ 1, 2). This language means something more than mere acquiescence but does not require physical participation, if there is association with the venture and any significant participation in it.” See Commonwealth v. Stout, 356 Mass. 237, 240-241. See also Commonwealth v. Bloomberg, 302 Mass. 349, 352-356; Commonwealth v. Geagan, 339 Mass. 487, 517-519; Commonwealth v. Doherty, 353 Mass. 197, 203-205; United States v. Peoni, 100 F. 2d 401, 402-403 the present day ia the man who “One of the greatest social menaces of t day is the man who would be termed an accessory before the fact by t a ies Corks buy lonanngn 0 voeoph tp ade tecien of a crime ving, Uo tends to put rime cn o Guta base roew ne ee aenea S Se mee , he provides the means by which crimes pod enn — on an ate scale, and w so that will resul ’ . with his plans. The g Wir fs ried underlings, who out his com- mands because they not disobey, is certainly no greater his, 173 ; 392 357 Mass. 35€ Commonwealth v. French. (2d Cir.); Russell v. United States, 222 F. 2d 197, 198-199 (5th Cir.); Winger v. United States, 233 F. 2d 440, 441-442 (9th Cir. — accessory may work through an intermediary); Massicot v. United States, 254 F. 2d 58, 64-65 (5th Cir.); White v. United States, 366 F. 2d 474, 476 (10th Cir.). Cf. Commonwealth v. Perry, ante, 149, 152, (evidence showed only that defendant knew and associated with active participants before and after a robbery); Morei v. United States, 127 F. 2d 827, 831-832 (6th-Cir.). Baron’s testimony warranted the conclusion that Tameleo was linked to the enterprise. He was charged (B-2, B-15) with knowledge of Limone’s contract offers (B-1, B-11) as to both Deegan and Stathopoulos. He explained in some measure his reasons for wanting Deegan killed (B-2). He said of Deegan, ‘‘He definitely goes,” and gave his “okay” to this murder and to the proposal to kill Stathopoulos. This could be inferred to be not mere approval but affirmative specific encouragement in circumstances which Tameleo should have realized removed existing barriers to carry- ing out the conspiracies. Fitzgerald’s testimony about Tameleo’s and Grieco’s efforts to bribe Baron tended to show Tameleo’s consciousness of guilt. From the testimony, the jury could infer that Tameleo adhered to the enterprises to kill both Deegan and Stathopoulos and that he furthered them by encouraging, and perhaps ordering, Baron to go forward with them.™ 16. Limone, upon Baron’s testimony, could have been found to have initiated the plan and to have paid for ™ The judge in his charge said of the evidence concerning Tameleo, that Baron in effect said, ‘ -" I am hired to kill Deegan, is that t?’ And he of conspiracy. An Py yy FA he is you i said sation, “I undeitand tee ce wants to ve me a contract to take eng he. is that right?’ ‘That's right.’ ‘W 1 edo yecany os. PF an ie yse beleve Pa eee ect. . aw degedy pd to the ect, if believe it, ‘ en uce me, if you com- ae want your approval, I will do it’ if yon induce me, if you com- t’s an seeusary before the fost On the other hand —~ y find the facta to that [Baron } said, ‘ I got a contract to kill yoy talling you I'm going to break into's sa [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_IA40385004_0270%3A1. Public record. Not legal advice.