Petition — Ong v. United States

Supreme Court, U. S,

TELE BB

ner 22 1976

ake

Iu THE

Supreme Court of the United

October Term, 1976

46-866 +

AEL RODAK, IR., CLERK

No. ..

BENNY ONG,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BARRY IVAN SLOTNICK

Attorney for Petitioner

233 Broadway

New York, New York 10007

Tel. (212) 233-5390

December 22, 1976

—s

Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302

Tel.: (212) 447-5358

————

————

——

ee tren

TABLE OF CONTENTS

| OMELET TET LT TT CULT ELE T TTT Te

i ie ee eae gamed

I hs a a a cae yaa aucele es Oe

Statutory Provisions Involved .............006-

I I gs os: 6 hoo 6s sc wee v he wee

Reasons for Granting the Writ ......... 0.2.46.

Rr | 500 ee a 2 i ane ee ek a

Cases Cited.

Berger v. United States, 295 U.S. 78, 85, SS S.Ct.

ee ee ee eee

Bruton v. United States, 391 U.S. 123 (1968)... ..

Jackson v. Denno, 378 U.S. 368 (1964) «0.2.0...

Kotteakos v. United States, 328 U.S. 750, 764, 66

5. Ct. 1289, 90 L.Ed. 2d 1557 (1946) ............

United States v. Keilly, 445 F.2d 1285 (2d Cir.,

1971), cert. den. 406 US 962, 92 S.Ct. 2064,

SE oon ck 60k edhe ed hensceuenes

United States v. Gerry, SIS F.2d 130 (2d Cir.,

PORE et wevechde suds 6eeee eis dk eeeeeaeetewes

ii

United States v. Love, 534 F.2d 87 (6th Cir., 1976)

('nited States v. Signer, 482 F.2d 394, 400 (6th

Cir.. 1973)

.

"Ve Fe Ceeseseseeesoeaeaeeas 6 0 B&O 6 6 6

**

Other Authorities

Federal Rules of Evidence, Rules 403, 404

28 USC $1254(a)

IS USC $37]

WN REE, 50.5 cb cacridtesdedgixe ae

Estelle v. Williams, 96 S.Ct. 1691 (1976) ..........

INDEX TO APPENDICES

Appendix A — Opinion of the United States Court

of Appeals tor the Second Circuit ..............

rs B — Order of Second Circuit Denying

MERE E TEL CT EC eee ee Por OPEL Ree

Appendix C —Excerpts from Joint Appendix filed

in the United States Court of Appeals for the

I UE | hn Stik cn bane ck cobeen bidea ees

Appendix D — Excerpts from tape recordings of

conversation of February 6, 1974 ..............

Appendix E—Transcript of tape recording of

conversation of February 6, 1976

la

27a

29a

3la

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1976

Sa

BENNY ONG,

Petitioner.

v.

UNITED STATES OF AMERICA,

Respondent.

The petitioner, Benny Ong, respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Second Circuit

entered in this proceeding on September 14, 1976.

OPINION BELOW

The opinion of the Court of Appeals is reported in 541

F.2d 331 (Appendix A). No opinion was issued by the

District Court for the Southern District of New York.

JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was entered on September 14, 1976. A timely

petition for rehearing en banc was denied on November 22,

1976, and this petition for certiorari was filed within 30

days of that date. This Court's jurisdiction is invoked under

28 USC §1254(1).

2

QUESTIONS PRESENTED

1. Whether the Court below erred in interpreting the

evidentiary question at issue as arising under Rule 403 of

the Federal Rules of Evidence when, in fact, the question

properly presented a Rule 404(b) problem?

| 2. Whether, under Rule 404(b) of the Federal Rules of

Evidence, the Court below was correct in allowing to stand

a conviction based, in part, upon reference to other crimes

wrongs or acts not alleged in the indictment where the

accused's character was not in issue?

3. Whether the conviction below was secured in

denigration of the petitioner's right to a fair trial and to due

process under law, and further, whether said conviction

worked a denial of equal protection under the law?

STATUTORY PROVISIONS INVOLVED

Rules of Evidence for United States

Co

Magistrates (Federal Rules of Evidence) oe

Rule 403. Exclusion of Relevant Evidence on Grounds of

Prejudice, Confusi ‘Ti sy

‘yudice, Confusion, or Waste of Time.

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the dan ~

ot untair prejudice, confusion of the issues, or waiteaii

the jury, or by considerations of undue delay, waste p

time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible To Prove

Conduct; Exceptions; Other Crimes

(a) CHARACTER EVIDENCE GENERALLY.—

Evidence of a person's character or a trait of his character

is not admissible for the purpose of proving that he acted in

conformity therewith on a particular occasio

n, except:

(1) CHARACTER OF ACCUSED.—Evidence

3

of a pertinent trait of his character offered by an

accused, or by the prosecution to rebut the same;

(2) CHARACTER OF VICTIM.—Evidence of a

pertinent trait of character of the victim of the

crime offered by an accused, or by the prosecution

to rebut the same, or evidence of a character trait

of peacefulness of the victim offered by the

prosecution in a homicide case to rebut evidence

that the victim was the first aggressor;

(3) CHARACTER OF WITNESS.—Evidence of

the character of a witness, as provided in rules 607,

608. and 609.

(b) OTHER CRIMES, WRONGS, OR ACTS.—

Evidence of other crimes, wrongs, or acts is not admissibie

to prove the character of a person in order to show that he

acted in conformity therewith. It may, however, be ad-

missible for other purposes, such as proof of motive, op-

portunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.

*e eK *

Federal Rules of Criminal Procedure

Rule 52. Harmless Error and Plain Error.

eke KK

(b) PLAIN ERROR. Plain errors or defects affecting

substantial rights may be noticed although they were not

brought to the attention of the court.

STATEMENT OF THE CASE

Petitioner was convicted after a jury trial of one count of

conspiracy to bribe investigators of the Immigration and

Naturalization Service (18 USC §371) as well as sixty-five

substantive counts surrounding that conspiracy (18 USC

§201(b) (February 11, 1976).

Ihe main proof against petitioner at trial was a series of

4

tape recordings which documented the actual bribe

transactions. In large part, these tapes were relevant to the

issues at trial, but in places they were replete with

gratuitous, irrelevant mentions of narcotics transactions.

lirearms violations and involvements with New York State's

then-controversial Special Prosecutor, Maurice H. Nadjari.

Though some redaction was attempted by the trial court,

much prejudicial material remained. The jury, however,

was told that all irrelevant material had been removed. The

tapes were played for members of the jury.

Upon summation, the Assistant United States Attorney

prosecuting the case made constant reference to those

irrelevancies by referring to tre petitioner as ‘“‘Chinatown’s

chief corruptor for 20 years”. (App.* C). During this

summation, the prosecutor reterred to petitioner as a

powerful member of “Hip Sing", a legitimate Chinese-

American fraternal group which the prosecutor had

consistently — and improperly — referred to during trial as

a powertul criminal organization. (App. C).

Those two areas, viz. the misconduct of the prosecutor

and the admission of a mass of highly prejudicial,

irrelevant evidence attacking the character of the

petitioner, were, each in and of themselves, sufficient. the

petitioner argues, to cause reversal of the judgment of

conviction and a remand for a new trial.

On appeal to the Court of Appeals for the Second

Circuit, the Circuit Court of Appeals (Lumbard, Friendly

and Oakes, C.JJ.) affirmed the conviction, holding inter

afta. that the evidence in question, though volatile and not

directly connected with the indictment, was still ad-

missible. The Court below felt that even though the con-

versations mentioned prior criminal acts by the petitioner,

all they indicated to the jury was an awareness that such

crimes exist. The Court did feel, however, that the acts

were not directly connected with the indictment (541 F.2d

at 340). In turning to the Government's summation, the

* The first portion of the Appendix attached hereto

5

Court below felt that there was nothing improper to be

found therein, on the grounds that any prejudicial

allegations were (a) not challenged as inaccurate, (b) not

objected to at trial, (c) mere adjectives relating to con-

ceded” illicit activity and not, by themselves, constitute

reversible error, and (d) the evidence of guilt was otherwise

still overwhelming.

REASONS FOR GRANTING THE WRIT

1. The Court below misapplied the standard for the

admission of the questioned evidence. This violated the

rights of the petitioner under the Constitution.

In deciding that the admission of the conversations

relating to narcotics was not error, the Court of Appeals

stated:

‘These conversations were not wholly irrelevant te

the issues being tried in the case and thus the

district court had discretion to determine whether

the probative value of the conversations was

outweighed by their prejudicial nature. (531 F.2d

at 339). (App. A) ig

As authority, the Court cited Fed. R. Evid. 403. This is

misplaced. That rule would admit all relevant evidence so

long as its probative value was not wholly outweighed by tts

danger of prejudice.

The proper standard was Rule 404(b). Rule 404 —_

that evidence of a person's character 1s not admissible

|404(a)| except where the accused puts his character >

issue [404(a)(1)| (by taking the witness stand). Under Rule

404(b) evidence of other crimes, wrongs, etc., is mot ad-

missible to prove the character of the accused.

Had the trial court utilized the proper standard, the

evidence in question would have not been admitted. To

admit such evidence was an abuse of discretion, and the

conviction of the petitioner was. therefore, garnered

6

without due process of law. Petitioner is entitled to the

presumption of innocence and to clothe him during trial in

the amorphous cloak of innuendo and conjecture is, per se

unconstitutional. Estelle v. Williams, %

[Dissent at 1699]. ns, 96 S.Ct. 1691 (1976)

2. The Second Circuit follows a standard of admissibility

,. t th

es t

| The standard for the admissibility of other crimes in th

Second Circuit is that evidence of other crimes is vr

missible except when admitted solely to prove criminal

character, United States v. Keilly,, 445 F.2d 1285 (2d Ci 4

IY L ) cert den. 406 US 962, 92 S.Ct. 2064. 32 L Ed 2d 380.

( nited States v. Gerry. 515 F.2d 130 (2d Cir.. 1975) This

is contrary to Rule 404(b) which would make such evidenc

imadmisstble unless admitted for certain specific purpose :

lhe difference is more than mere “technicalese”’ ne ts dhe

second Circuit the presumptionbecomes that such uiieien

is admissible unless shown otherwise. In Circuits whi h

tollow the rule as written, the presumption is that io

evidence is to be omitted unless there is a showing that it i

sought to be used for one of the permitted pur vag

a shift in the burdens involved raises nt of

ensoonental fairness and constitutional protections.

3. (he improper summation by the

with the characterization of pe

of a tair trial.

by prosecutor coupled

titioner deprived petitioner

m. 7 my ne in Berger v. United States

<7 U.S. /8, BS, SS S.Ct. 629, 79 L.Ed. 1314 |

la 29, -Ed. 1314 (1935)

: m - Sutherland], the actions of the prosecutor noe

Broan, eerie and even the declaration of a mistrial

ad, the trial court allowed the pros i |

“It is impossible to say ~} vats

say that the evil influence

» is ahalel 2 ° : .

ot these acts of misconduct was removed rn oe

‘Id. at 8S. Under the Federal

judicial action as was taken.’

7

Rules of Criminal Procedure, such ‘‘plain error’’ need not

be objected to at trial. F.R.Cr.P. Rule 52(b). In other

circuits, the characterization of petitioner as ‘““Chinatown’s

chief corruptor for 20 years’ would have, in itself, been

recognized as reversible error. Depicting petitioner as such

“could not help but prejudice him in the eyes of the jury”.

United States v. Signer, 482 F.2d 394, 400 (6th Cir., 1963);

accord. United States v. Love, 534 F.2d 87 (6th Cir., 1976).

Error such as this is not to be looked upon in terms of strict

legal theory. The important question is “rather what effect

the error had or reasonably may be taken to have had upon

the jury's decision. The crucial thing is the impact of the

thing done wrong on the minds of other men, . . .”” Kot-

teakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1289,

O) L.Ed.2d 1557 (1946). [Mr. Justice Rutledge]. It was the

duty of the prosecutor to refrain from such overzealousness

and his failure to do so violated petitioner's right to a fair

trial. Berger v. United States, supra.

4. The individual errors combined with improper

summation amounted to prejudicial error and was sub-

stantial enough to require that petitioner be granted a new

trial.

The Court below granted that the admission of the

conversations relating to narcotics “involved volatile

material not directly connected with the instant in-

dictment.”” [541 F.2d at 340]. Moreover, the Court

recognized that the trial judge, who had not redacted the

tapes to any great extent, felt that all narcotics traffic

material was irrelevant. [/d. |. Yet the Court of Appeals

condoned the practice of allowing the jury to sit and hear of

how these Chinese defendants were dealing in heroin on the

streets of their city, even though this was a bribery case

surrounding the maintenance of illegal gambling halls.

Then, when the prosecutor capitalized on these errors by

referring to them in summation, by stating that petitioner

was. after all, one of the chief crime figures in Chinatown,

the Circuit Court defended the practice by saying that

8

petitioner “does not claim that the accusation that he

engaged in illicit activities over an extensive period of time

is itself inaccurate, .. . *’ (S41 F.2d at 343).

These errors cannot be looked at individually, nor can

they be nullified by saying that each error, by itself, was not

reversible error, and that “the jury found the defendants

guilty on the basis of the substantial evidence . . . without

considering any other illegal acts.”’

The test is not “‘merely whether there was enough to

support the result, apart from the phase affected by the

error. It is rather, even so, whether the error itself had

substantial influence. If so, or if one is left in grave doubt,

the conviction cannot stand.”’ Kotteakos v. United States,

supra, at 76S.

lt is conceded by the Court below that the evidence

udmitted was “‘volatile’’ and that the prosecutor had

utilized an adjective which “exagerated Ong's otherwise

conceded illegal activity.”’ (S41 F.2d at 343). No jury could

possibly thread the maze set up by the actions of the trial

court, in order to give petitioner a fair trial. Bruton v.

United States, 391 U.S. 123 (1968). Additionally, here

there were few limiting instructions and almost no

redaction to aid the trier of facts in its duty. Cf. Jackson v.

Denno, 378 U.S. 368 (1964).

~<a es

a

9

CONCLUSION

f certiorari should issue to

se reasons, a writ 0 diss

ae t the Second Circuit.

review the judgment and opinion 0

Respectfully submitted,

BARRY IVAN SLOTNICK

Attorney for Petitioner

233 Broadway

New York, New York 10007

a NS le ct! te,

la

APPENDIX “A”

OPINION

UNITED STATES OF AMERICA,

Appellee,

-against-

BENNY ONG et al.,

Defendants-Appellants.

Nos. 1052-!055, Dockets 76-1087,

76-1088, 76-1093 and 76-1094.

United States Court of Appeals,

Second Circuit.

Argued May 20, 1976.

Decided Sept. 14, 1976.

The United States District “Court for the Southern

District of New York, Charles L. Brieant, Jr., J., convicted

all defendants of bribery and convicted all defendants but

one of conspiracy to bribe investigators of Immigration and

Naturalization Service, and defendants appealed. The

Court of Appeals, Lumbard, Circuit Judge, held that

1. Criminal Law 1165(1)

Where Government produced overwhelming proof of

guilt of all defendants in prosecution for bribery of Im-

migration and Naturalization Service investigators, claims

of error would be viewed accordingly and possible effects of

any errors at trial would be considered to be less serious

than if question of defendants’ guilt had been a close

question.

_ 2a

2. Conspiracy 47(13)

In prosecution for conspiracy to bribe criminal in-

vestigators of Immigration and Naturalization Service.

evidence was sufficient to allow jury to conclude beyond

reasonable doubt that defendants knew of the existence of

other members of a joint bribery plan and that each was

aware that his arrangement with investigators had been

made in concert with arrangements made for other

gambling house operators.

3. Criminal Law 618

Once defendants have been properly joined under

Federal Rule of Criminal Procedure, dismissal of count

justifying joinder will require severance of the remaining

counts only if the defendant will be prejudiced by the

joinder or if the count dismissed was not alleged by the

Government in good faith or, in other words, that count

dismissed was not alleged by Government with reasonable

expectation that sufficient proof would be forthcoming at

trial. Fed. Rules Crim. Proc. rule 8(b), 18 U.S.C.A.

4. Criminal Law 618

For purpose of rule that dismissal of count justifying

joinder requires severance of remaining counts only if

detendant will be prejudiced by joinder or if count

dismissed was not alleged by Government in good faith,

novelty of the Government's argument does not necessarily

indicate bad faith, and, in the absence of proof that the

Government's theory was frivolous or clearly rejected by

recent precedent of which it was or should have been

aware, court will not find that argument has been

prompted by bad faith simply because it is unsuccessful.

Fed. Rules Crim. Proc. rule 8(b), 18 U.S.C.A.

5. Criminal Law 622(2)

Failure of trial court to grant motion for severance filed

by defendant charged with bribery and conspiracy to bribe

criminal investigators of Immigration and Naturalization

Service after conspiracy count had been dismissed was

ee le ees a ao

os

3a

prejudicial where, even though conspiracy charge was

made in good faith, evidence concerning nefarious

reputation of codefendants who were tried for both bribery

and conspiracy to bribe, and tape recordings containing

codefendants’ inculpatory statements would probably not

have been admitted at trial of defendant alone.

6. Criminal Law 1165(1)

An error that affects no substantial rights of the

detendant is thereby rendered harmless and does not

constitute grounds for relief, and, for purpose of such rule,

“harmlessness” is a relative term that requires specific

definition in each case by determining the effect on the

jury's verdict of the error’s absence. Fed. Rules Crim. Proc.

rule 52(a), 18 U.S.C.A. %

See publication Words and Phrases for other judicial

constructions and definitions.

7. Criminal Law 1166(6)

Where untainted evidence of guilt is substantial, a

greater demonstration of prejudice resulting from an

erroneous failure to sever must be made before the error

will be considered to require reversal. Fed. Rules Crim.

Proc. rule 52(a), 18 U.S.C.A.

8. Criminal Law 1166(6) |

Trial court’s error in refusing to grant motion for

severance filed by defendant charged with bribery and

conspiracy to bribe criminal investigators of Immigration

and Naturalization Service after conspiracy count had been

dismissed did not warrant reversal in view of overwhelming

evidence indicating defendant's guilt, even though failure

to sever was prejudicial in that certain evidence concerning

codefendants. who were tried for both bribery and con-

spiracy to bribe, would probably not have been admissible

at trial of defendant alone on bribery charge. Fed. Rules

Crim. Proc. rule 52(a), 18 U.S.C.A.

4a

9. Criminal Law 369.1

It is desirable in any criminal case to keep from the jury

any evidence of malfeasance by the defendants not related

to the charges at issue.

10. Criminal Law 338(7)

Narcotics evidence usually should be excluded in a

nonnarcotics trial in view of the potentially inflammatory

impact of such evidence.

11. Criminal Law 673(5)

In prosecution for bribery and conspiracy to bribe

criminal investigators of Immigration and Naturalization

Service, trial court did not abuse its discretion in admitting

into evidence portions of tape recordings indicating that

one defendant had knowledge of narcotics activities. in

view of facts that recorded conversations revealed

awareness rather than involvement in narcotics activities.

that trial judge persistently admonished jury that traffic in

narcotics was irrelevant to issues before them, and that

conversations were probative of prosecution's contention

that cordial relations existed between defendant and

criminal investigators.

12. Criminal Law 673(2)

In prosecution for bribery and conspiracy to bribe

criminal investigators of the Immigration and

Naturalization Service, tape recordings revealing

codefendant’s warnings to investigators not to let defen-

dant fall behind in his bribery payments because defendant

was untrustworthy and had never repaid $5,000 bribery

payment made to police officers by codefendant on behalf

of detendant was admissible even though statements clearly

were hearsay with respect to defendant, in view of in-

struction that jury could only consider statements as in-

dicating codefendant’s animosity towards defendant and

could not be used as evidence of any prior wrongdoing of

defendant.

5a

13. Criminal Law 1170'/A5)

In prosecution for bribery and conspiracy to bribe

criminal investigators of the Immigration and

Naturalization Service, trial court did not commit rever-

sible error in refusing to permit defense counsel to ask

investigator on cross-examination if he had tried to involve

defendant in a narcotics deal, in view of facts, inter alia,

that evidence concerning narcotics activities had been

permitted on direct examination only to demonstrate

cordial relationship among defendants and investigators In

order to rebut contention of coercion and that total cross-

examination was sufficient to afford jury basis to evaluate

detense theory.

14. Criminal Law 1037.1(1) ,

Where the tria! judge responds effectively to all defense

objections during summation, little weight will be given to

objections to summation later complained of for the first

time on appeal.

15. Criminal Law 1037.1(2) |

In prosecution for bribery and conspiracy to bribe

. . . . . . . - . 4 . ion

criminal investigaters of Immigration. and Naturalizati

Service, reversal was not warranted by Statement made

during Government's rebuttal characterizing one defen-

dant as “Chinatown’s chief corrupter for 20 years, where

no objection vas made to statement at trial and where

evidence overwhelmingly indicated defendant's guilt.

Gregory J. Potter, Asst. U.S. Atty., New York City

(Robert B. Fiske, Jr., U.S. Atty., $.D.N.Y., Lawrence B.

Pedowitz and John C. Sabetta, Asst. U.S. Attys., New

York City, on the brief), for appellee.

Daniel Markewich, New York City (Markewich,

Rosenhaus, Markewich & Friedman, P.C., New York City,

Goldman & Hafetz, New York City, Lawrence S. Goldman

and Frederick P. Hafetz, New York City, on the brief), for

defendant-appellant Benny Ong.

6a

| William C. Herman, New York City (Julia P. Heit, New

York City, on the brief), for defendant-appellant Wong

Wah.

James A. Cuddihy, New York~ City, for defendant-

appellant [Tom Hom.

Gilbert S. Rosenthal, New York City (Julia P. Heit, New

— City, on the brief), tor defendant-appellant Albert

oung.

Betore Lumbard, Friendly and Oakes, Circuit Judges.

Lumbard, Circuit Judge:

Benny Ong, Wong Wah, Tom Hom and Albert Young

appeal from their convictions after a nine-day trial before

Judge Brieant in the Southern District and jail sentences

imposed on them on February 11, 1976.1 Ong, Wah and

Hom were convicted of participating in a conspiracy from

October 1973 to July 1974 to bribe criminal investigators of

the Immigration and Naturalization Service and numerous

counts of bribery on specified dates. Young was convicted

on 20 counts of bribery, the court having dismissed the

conspiracy count against him at the end of the govern-

ment’s case.

y oung complains that as the government did not act in

good faith in charging him with membership in the con-

spiracy which it knew it could not prove. the court should

have granted his motions for a severance and later for a

mistrial. All the appellants allege that the admission of

irrelevant, unduly prejudicial and inflammatory evidence

1. Judge Brieant sentenced defendant Ong to five years imprisonment on

Count One, the conspiracy count, and eight years on Counts Two through

Sixty-ane and Seventy-four through Seventy-eight, all sentences to run aes

currently, Wah was sentenced to concurrent terms of three and a half ye

imprisonment on Count One ard on Counts Thirty-five through Sianpdboes

Hom was sentenced to concurrent terms of three years imprisonment on Count

One and on Counts Sixty-four through Seventy-eight. Young was sentenced to

concurrent eighteen month terms of im , “I

prisonment on Counts Ei

Ninety-nine and fined $5000, il its

Ta

regarding other crimes deprived them of a fair trial. They

also assert that improper remarks in the prosecutor's

summation deprived them of a fair trial. In addition,

appellant Wah complains that the trial judge erroneously

curtailed his counsel's cross-examination of INS in-

vestigator Lawrence Granelli.

(1] As with almost every criminal jury trial which extends

over several days and involves multiple defendants, it

cannot be said that the record is free from doubt regarding

all the rulings on the admission of evidence. But a study of

the record in this case, including the transcripts of tape

recorded talks with all the defendants relating to bribes

and on the occasion of their payment of bribes, leaves us

with the strong conviction that the government produced

overwhelming proof of the guilt of all the defendants. We

view the claims of error accordingly and consider the

possible effects of any errors t» be less serious than we

would if the case against all or any one of the defendants

could be considered to be a close question. As we conclude

beyond a reasonable doubt that contrary rulings on all the

matters of which the appellants complain would still have

resulted in the verdicts returned by the jury, we affirm all

the convictions. Cf. Brown v. United States, 411 U.S. 223,

231-32. 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

In October 1973, all four appellants were in the business

of running separate gambling houses in Chinatown in

Manhattan's lower East Side. Ong was the secretary of the

Hop Sing Association, with a branch at 16 Pell Street. Wah

was the secretary of the Tai Look Association at 58 East

Broadway. Hom managed a place at 22 Pell Street. Young

ran the Tsung Tsin Association at 1 Catherine Street. The

record discloses that these gambling houses relied heavily

on the patronage of illegal aliens.

On October 14, 1973, Ong saw INS investigators

Granelli and Brattlie in Pell Street and beckoned them to

join him. Ong told the agents he wanted gambling house

people to meet with INS officials to make arrangements for

8a

checking illegal aliens in the gambling houses. The agents

said they would have to speak to their supervisor.

Granelli thereeAFTER SPOKE TO HIS SUPERVISOR,

WHO SUGGESTED THE NEGOTIATIONS CON-

TINUE. That evening. Granelli and a new partner, In-

vestigator James Kibble, met with Ong who told them that

he knew of at least eight gambling houses that would each

pay $200 per week in exchange for advance notice of INS

visits. After this conversation was reported to the INS

supervisor the matter was referred to the FBI where Special

Agent Henry was charged with the investigation.

Agent Henry obtained the approval from the Depart-

ment of Justice for use of recording equipment by Granelli

and Kibble in their subsequent meetings with Ong and the

other defendants. From November 15 on, most of the

meetings and telephone conversations between the in-

‘estigators and the defendants were recorded, and the

(apes were introduced into evidence at the trial. It was

through use of these tapes and the testimony of the in-

vestigators relating what had transpired at unrecorded

meetings that the government implicated all the defendants

in the bribery scheme.

Granelli and Kibble testified that on November 6, 1973,

they met with Ong to express interest in his offer on behalf

of their boss. Later the same evening, the investigators were

admitted to the Tai Look basement gambling house by

Wong Wah. Wah permitted the investigators to search for

illegal aliens and then informed Kibble that he, Wah, had

been called by Benny Ong.

On November 8, the investigators again met Ong who

told them that some of the gambling house operators had

objected to paying as much as $200 per week. However,

Ong oftered to make payments in that amount for himself,

the Catherine Street houses, some of which were al!-gedly

run by defendant Young, and the 58 East Broadway house,

which was run by defendant Wong Wah. During this

9a

conversation, the investigators expressed anger that Wan

approached Kibble and mentioned that Ong had called

him. Ong agreed to speak to Wah to prevent future public

mention of Ong’s name.

The next week the investigators called Ong to arrange a

meeting for the first payoff. Ong was accompanied at the

subsequent meeting by Wah, and they each gave the in-

vestigators $200. Another $400 payment was made at a

meeting the following week, during which Ong suggested

that the investigators raid the Catherine Street houses

which had refused to make payment.

Payments from Ong continued throughout November

and into December. During the meetings at which the

payments were made, Ong boasted of his cordial relations

with New York City police officials and stated that he had

been giving money and gratuities to them for several years.

He also expressed displeasure with the Catherine Street

gambling operators for not making payments and in

particular derided defendant Young, who allegedly owed ©

Ong $5000 for a previous payment made to other police

officials on Young's behalf.

On December 12, 1973, Granelli and Kibble drove past |

Catherine Street looking for illegal aliens when defendant

Young motioned to them. In the ensuing conversation,

Young told the investigators that he knew of their deal with

Ong and that he wanted to make a similar arrangement.

The investigators agreed to meet with Young the following

day. At the scheduled meeting, Young offered the in-

vestigators $200 per week to prevent any raids on his

gambling house. Young also requested that Ong not be

told of the arrangement.

At a subsequent meeting with the investigators, however,

Ong informed them that he knew Young was making

payments and wanted to know the amount. Ong suggested

that they increase the amount charged to Young and

reminded the investigators of Young's previous $5000

delinquency.

10a

Payments to the investigators on behalf of Ong, Wah

and Young continued into January 1974. On January 17,

the investigators informed Ong that a man had approached

two other INS investigators outside 61 Mott Street and

offered to take them to see Benny Ong and to pay them

money in order to prevent unexpected raids on a Mott

Street gambling house. The agents had reported the in-

cident to the supervisor who was aware of Granelli and

Kibble’s undercover exploits, and Granelli and Kibble

complained to Ong that had the other agents reported the

incident elsewhere, trouble would have resulted. Ong said

that he knew the identity of the malefactor and would

speak to him.

Ong ‘ater introduced the man, identified as the

defendant Tom Hom, to Granelli and Kibble and informed

them that Hom wanted the same deal that had been

arranged with Ong and Wah. This offer was accepted and

all defendants made weekly payments throughout the

remainder of the period charged in the indictment, except

lor briet periods when Wah and Young temporarily went

out of the gambling business.

Following arrests by officers associated with Special

State Prosecutor Maurice Nadjari in March 1974, Wah and

Hom retused to deal directly with Granelli and Kibble and

ull payments to the investigators on behalf of these two

defendants were made by Ong. At an April 7, 1974

meeting. Ong informed the investigators that he had been

arrested by police trom Nadjari's office after other officers

had contessed that they had accepted bribes from Ong. On

July 18, 1974, the defendants were arrested fro bribing INS

investigators. “By that time, Granelli and Kibble had

received $6000 from Benny Ong, $3000 from Tom Hom,

96200 trom Wong Wah, and $5000 from Albert Young.

At the close of the government's case, Judge Brieant

dismissed the conspiracy count with respect to defendant

Young. The judge refused, however, to grant Young's

motion for a severance.

lla

The making of the payments was not deniea as none of

the defendants took the stand. The defense was that they

were coerced by the investigators into making payments

and had to comply with the extortionate demands to

prevent destruction of their gambling operations. Defense

counsel also argued that gambling was part of an accepted

lite style in Chinatown and that a long history of

discrimination against Chinese in the United States made

them especially susceptible to the threats and demands ot

police and other officials. In its charge, the court instructed

the jury that they could consider evidence of coercion In

determining whether defendants possessed the requisite

intent to bribe.

The Claim of Multiple Conspiracies

Hom contends that Judge Brieant's charge on the

conspiracy count failed to indicate satisfactorily that if the

jury found multiple conspiracies among the defendants

rather than a single conspiracy as charged in the in-

dictment. they would have to acquit on the conspiracy

count. Hom also claims that the judge should have charged

that participation in one conspiracy of many did m

constitute participation in a single overall conspiracy. We

find these claims to be wholly without merit.

|2| Sufficient evidence was adduced at trial to allow the

jury to conclude beyond a reasonable doubt that Ong. Wah

and Hom knew of the existence of other members of a joint

plan and that each was aware that his arrangements with

the investigators had been made in concert Bat

arrangements for other gambling house operators. See

United States v. Bernstein, 533 F.2d 775, 793 (2d Cir.

1976): United States v. Manarite, 448 F.2d 583, 589 (2d

Cir.). cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d

2. Indeed. in his brief on this appeal, Wong Wah concedes that Hom and

Wah were aware that cach was making payments.

12a

264 (1971). Specifically, there was testimony that Hom had

approached INS agents with respect to making payments to

avoid unexpected raids and had mentioned Ong’s name in

connection with a payoff scheme. On several occasions

meetings at which payments were made were attended by

more than one conspirator, and on other occasions, Ong

Wah and Hom appeared separately within minutes of each

other to pay the investigators. After the March 1974 arrests

by officers assigned to Special Prosecutor Nadjari, Ong

made several payments for the houses of Wah and Hom.

| Not only was the evidence sufficient to allow the jury to

infer that each conspirator knew of his participation in a

broad scheme, but Judge Brieant actually instructed the

jury that such a determination must be made and that

proof of separate conspiracies would not support a con-

viction, We therefore find no basis for complaint in the

instruction.

Young's Motion for a Severance

Eight months before the trial began, defendant Young

moved tor a dismissal of the conspiracy count against him

and a severance of his case. Young claimed that transcripts

of the tape recorded meetings between various defendants

and the INS investigators conclusively demonstrated that

no conspiracy ever existed among Young and _ his

codetendants. Young stressed that the transcripts revealed

that there was great animosity between him and Ong and

that each indicated a desire to avoid any business dealings

with each other. In particular, several of the transcripts

contained derogatory comments about Young made by

Ong. including warnings to Granelli and Kibble that

Young could not be trusted. Young maintained that if the

conspiracy charge was dismissed, his case should be

severed to avoid his being unduly prejudiced by a spillover

effect of any evidence introduced at trial of those defen-

dants who had participated in the conspiracy. Judge

13a

Brieant denied Young’s motion on the basis of the

government's representations of what it would prove at trial

regarding Young's connections with the other defendants.

At the conclusion of the government's case, however,

Judge Brieant dismissed the conspiracy count against

Young on the ground that no reasonable juror could infer

from the evidence actually adduced that Young had taken

part in the conspiracy charged. Nevertheless, the judge

refused to sever Young's case. He determined that most of

the evidence that had been theretofore introduced against

the other defendants concerning the existence and object of

the conspiracy would also be admissible at a separate trial

of Young since he had made reference to the other con-

spirators in conversations with the INS investigators.

Young unsuccessfully moved to set aside the verdict on the

ground that the court erred in denying the severance. On

this appeal, Young renews the same claim. We affirm the

district court.

3] Once defendants have been properly joined under

Fed. R. Crim. P. 8(b), dismissal of the count justifying the

joinder will require severance of the rema'*ing counts only

if the defendant will be prejudiced by the joinder or if the

count dismissed was not alleged by the government in good

faith, i.e.. with reasonable expectation that sufficient proof

will be forthcoming at trial. United States v. Aiken, 373

F.2d 294, 299 (2d Cir.), cert. denied, 389 U.S. 833, 88

S.Ct. 32. 19 L.Ed.2d 93 (1967).

The government's proof was based almost entirely on

testimony elicited from the INS investigators and the tapes

of conversations with the defendant. Thus, the government

knew well in advance what evidence it would be able to

introduce at trial. The government was aware that while

Ong had initially indicated that he spoke for eight gam-

bling houses, including those on Catherine Street allegedly

operated by Young, this hearsay boast was never

corroborated by payments through Ong from any houses

l4a

other than those operated by Wah and Hom. Furthermore,

the government ostensibly knew that the tapes revealed

antagonism and distrust between Ong and Young that

would have impaired any relationship conducive to the

success of the conspiracy. Clearly the government cannot

have acted in good faith unless it had a reasonable ex-

pectation that it could prove Young's participation in the

conspiracy despite this contrary evidence. We find that the

government's case, albeit based on a_ novel and

questionable theory of conspiracy, satisfied this standard.

From the time the government first learned of Young's

objection to his inclusion in the conspiracy count, it has

maintained that the mutual interest and awareness by

Young and Ong in each other's negotiations with INS

investigators was sufficient to charge them with par-

ticipation in a single conspiracy despite the absence of any

concerted action between these defendants. The govern-

ment has consistently contended that the mere knowledge

of all defendants that there existed a scheme to bribe in-

Vestigators, conjoined with individual acts of each

defendant to ensure the success of his part of the common

design, satistied the elements o* \!ic conspiracy charged. It

is apparently the government's claim that since each

defendant would benetit not only from his individual

arrangement with INS officials, but also from the

cumulative decrease in successful raids in Chinatown

gambling houses, a tacit unlawful agreement could be

inferred even where there was no evidence of direct

communication about the matter with Young. Cf. United

States v. Cogan, 266 F. Supp. 374, 377-78 |§.D.N_Y.

1967),

The noveslty of such a theory is evidenced by the fact that

the government's primary support for its proposition is an

extract of a Canadian case, Rex v. Meyrick and Ribuffi. 21

Crim. App. R. 94 (1929), in which the court found a single

conspiracy where two nightclub proprietors offered bribes

15a

to a police officer individually, but in the knowledge that

the other was doing likewise.3

[4] We may not agree that the law of conspiracy should

be extended so far. See United States v. Bufalino, 285

F.2d 408 (2d Cir. 1960). We do not, however, equate

novelty or even error with bad faith. In the absence of

proof that the government's theory was frivolous or

clearly rejected by recent precedent of which it was or

should have been aware, we will not find that an

argument has been prompted by bad faith simply because

it is unsuccessful.

IS] We cannot, however, agree that Young's joinder

with the other defendants was free from prejudice. As

Judge Brieant stated, Young's mention of Ong’s

arrangement with INS investigators may have allowed the

government to introduce into evidence at a separate trial

of Young the outlines of the conspiracy proven at this

trial. It is improbable, however, that the evidence con-

cerning the nefarious reputation of Ong or any mention

of the subjects presently complained of and discussed

infra would have played any role in a trial of Young

alone. Nor is it likely that the government would have

been permitted to introduce the multitude of tapes

concerning solely the other defendants in which they

literally convicted themselves out of their own mouths.

These facts, when added to the prejudice inherent in any

multi-defendant trial, make it possible that Young's

relationship to the other defendants, by reason of his

physical presence in the courtroom, injected an element

of guilt by association into the jury's deliberations. See

United States v. Branker, 395 F.2d 881, 887-89 (2d Cir.

. HW the government proffered an acceptable theory of conspiracy law, it

would not be rendered less viable by a disphery of animosity among conspirators.

See United Srates v. Tramuntt. 513 2d 1087, 1106-07 n. 23 (Qd Cir.), cert.

demied, 423 US. 832, 96 S.Ct. S4. 46 1 bd.2d SO (1979S); United States v.

Mallah, S03 F.2d 971, 980 Qd Cir, 1974), cert. denied, 420 U.S. 995, 95 S.Ct.

1425, 43 L.Bd. 2d O71 (1975).

16a

1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21

L.Ed.2d 573 (1969); cf. United States v. Kompinski, 373

F.2d 429 (2d Cir. 1967).

| [6-8] Our conclusion that Young should have been

given a separate trial to avoid undue prejudice does not

automatically require reversal. An error that affects no

substantial rights of the defendant is thereby rendered

harmless and does not constitute grounds for relief.

Fed.R. Crim. P. S2(a). Harmlessness is a relative term

that requires specific definition in each case by deter-

mining the effect on the jury's verdict of the error’s

absence. See Chapman v. California, 386 U.S. 18, 22-23,

87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United

States, 328 U.S. 750, 762, 66 S.Ct. 1239, 90 L.Ed. 1557

(1946). Thus, where untainted evidence of guilt is sub-

stantial, a greater demonstration of prejudice resulting

trom an erroneous failure to sever must be made before

the error will be considered to require reversal. See Loftis

v. Beto, 450 F.2d 599 (Sth Cir. 1971) (denial of severance

after codefendant confessed was harmless error where

evidence of defendant's guilt was overwhelming and no

reasonable jury could have reached a different result at a

severed trial). Cf. United States ex rel. Ross v. LaVallee.

448 F.2d 552, 554 (2d Cir. 1971).

No evidence could be more inculpatory than the tapes

heard by the jury of meetings at which Young arranged to

make payments to Granelli and Kibble, and later

meetings at which payments were actually made. Young

never denied making the payments, but only joined the

other defendants in their attempt to establish the defense

of coercion. Little evidence was introduced to support this

theory of coercion and it was contradicted in Young's

case by his suggestion to the investigators of illegal means

by which they could make more money. Given this

record, we are convinced byond a reasonable doubt that

the jury would have reached the same verdict had Young

been tried separately and therefore that his trial with the

17a

other codefendants was harmless error. See United States

v. Glasser, 443 F.2d 994, 1003 (2d Cir.), cert. denied, 404

U.S. 854, 92 §.Ct. 96, 30 L.Ed.2d 95 (1971).

Ong maintains that throughout the trial the

prosecution interjected reference to his activities that

were irrelevant to the charges and that these references

were so prejudicial and inflammatory as to deprive him of

a fair trial. Although the activities mentioned were often

those of Ong alone, the other defendants claim that the

improper references pervaded the trial and preverited the

jury from rendering a verdict based solely on the evidence

of bribery properly before them.

19] It is, of course, desirable in any criminal trial to

keep from the jury any evidence of malfeasance by the

defendants not related to the charges at issue. See United

States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957).

Nevertheless, we find that any reference to such activities

was made with the prior knowledge of the defendants

and. in the face of the massive evidence of guilt on the

bribery and conspiracy charges, was unlikely materially

to influence the jury.

The question of unrelated information on the tapes was

brought to the district court's attention at least four

months before the trial. At that time, Ong’s attorney

informed the court that the copies of tapes that he had

already obtained included potentially inflammatory and

prejudicial material that might require redaction. The

judge expressed a willingness to redact or give

precautionary instructions with respect to such material,

but in the course of the conference he informed counsel

that he wanted to know of motions “with respect to the

tapes or the, transcripts” prior to trial to avoid in-

terruption of testimony to deal with evidentiary problems.

No such relief was sought before trial. Nevertheless,

during the early stages of the trial, the court was suf-

ficiently concerned about claims of prejudicial material

on the tapes that it did interrupt the trial to hold a

18a

hearing with the result that some material was redacted.

Defendants maintain, however, that some _ in-

flammatory material still found its way into evidence. The

most serious of these contentions is that some recordings

implied that Ong and Wah were familiar with illegal

narcotics traffic. The jury was permitted to hear a

conversation of January 23, 1974 in which Ong informed

the INS investigators that “two pounds”’ of ‘‘white stuff’

had been taken from a local barber shop. In response to

the investigators’ questioning, Ong recited the value of

the narcotics and revealed where they had been hidden.

He also told the investigators that his knowledge was

limited because *‘I don't do that no more."’ The court

refused to redact this tape on the ground that it only

related “‘local news,’’ was not prejudicial, and demon-

strated the close relationship between Ong and the in-

vestigators.4

The jury also heard a conversation of February 6, 1974

wherein Ong and Wah discussed the price of a kilo of

heroin in which Granelli had expressed an interest. The

conversation was interrupted when Ong, seeing the

approach of Hom, warned the others not to discuss

heroin in the presence of the co-conspirator. When Hom

lett, Ong advised Wah in Chinese not to become involved

in the proposed narcotics deal and then informed the

investigator that he was too old to get involved in such

dealings. The district court determined that this con-

versation did not implicate any defendant in any

wrongdoing unrelated to the charges being tried and thus

tefused to redact it.

110, 11 | These conversations were not wholly irrelevant

4. The trial judge also determined that the rule of completeness required

intraduction of the entire transcript to prevent mutilation of the conversation

that would make tt unusable. As we have determined that the conversation was

admissible on other grounds, we need not determine whether the rule of

completeness applied to this situation.

19a

to the issues being tried in the case and thus the district

court had discretion to determine whether the probative

value of the conversations was outweighed by their

prejudicial nature. United States v. Catalano, 491 F.2d

268 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42

L.Ed.2d 48 (1974); Fed. R.Evid. 403. Although ordinarily

there are few subjects more potentially inflammatory

than narcotics and thus such evidence should usually be

excluded in a non-narcotics trial, we believe that in the

total circumstances of this case, the trial judge did not

abuse his discretion in admitting the challenged con-

versations.

Defense counsel had argued in their opening

statements that any payments made by defendants were

coerced by the immigration officers’ threats to close the

gambling operations on which defendants were finan-

cially dependent. The conversations in which the parties

openly discussed illegal operations in the neighborhood

and the possibility of obtaining narcotics were probative

of the prosecution's retort that cordial relations among

the parties belied the theory of coercio’. See United

States v. Cockerham, 155 U.S.App.D.C. 97, 476 F.2d

542, 545 (1973). Defendants have not cited any other

conversations that would have demonstrated congeniality

among the parties without including some references to

illicit activities. Moreover, the reference to narcotics in

this case did not inculpate any defendant in ongoing

illegal transactions. As Judge Brieant noted, it was

possible to infer from all these conversations only that

defendants, especially Ong, were aware that various

narcotics transactions occurred in Chinatown. It was

neither inevitable nor probable that the jury would infer

involvement of any of the defendants from that

knowledge. Thus, even though the conversations involved

volatile material not directly connected with the instant

indictment, they could be admitted to prove the guilt of

defendants under that indictment. See United States v.

es ad

20a

Chapin, 169 U.S.App.D.C. 303, 515 F.2d 1274, 1284,

cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d

387 (1975).

Moreover, we believe that the defendants’ dilatoriness

in bringing the challenged references to the attention of

the district court indicates that before the trial they did

not consider mention of other illicit activities to be as

prejudicial as they now claim. Counsel for Ong maintains

that he understood Judge Brieant’s request for pre-trial

motions to pertain only to motions for corrected, ad-

ditional or alternativepts and not to motions for

redaction. This interpretation of the judge’s ruling,

however, is contrary to common sense, especially in light

of the court's constant expression at the pre-trial hearing

of a desire to try the case unimpeded by collateral issues.

In any event. as discussed above with respect to

Young's claim for severance, the overwhelming proof

against defendants placed upon them a heavy burden to

demonstrate that any substantial rights were adversely

affected by the rulings of the court. We do not believe

that that burden was satisfied by the introduction of

conversations involving narcotics. Since those con-

versations revealed awareness of rather than involvement

in narcotics activities and since the trial judge persistently

admonished the jury that traffic in narcotics was

irrelevant to the issues before them, we believe beyond a

reasonable doubt that the jury found the defendants

guilty on the basis of the substantial evidence of bribery

and conspiracy without considering any other illegal acts.

See United States v. Williams, 523 F.2d 407 (2d Cir.

1975); United States v. Bell, S00 F.2d 1287 (2d Cir.

1974).

S The same rationale applies to other instances in which allegedly in-

fammatory material was not redacted. Statements by Ong that he had given

bribes or gratuities to other police officers for many years and had been

arrested vy officers under the jurisdiction of Special Prosecutor Nadjari were

made in turtherance of the conspiracy and were related to the issues before the

jury. Thus ihe judge was entitled to weigh their probative value against the

2la

[12] The tapes also reveal Ong’s warnings to Granelli

and Kibble not to let Young fall behind in his payments

because the latter was untrustworthy, exemplified by the

assertion that Young had never repaid a $5000 payment

made to police officers by Ong on Young's behalf.

Although this statement clearly was hearsay with respect

to Young, we do not believe that he suffered any

prejudice from its admission into evidence sufficient to

require reversal.

The court initially allowed the government to elicit

testimony concerning the $5000 payment on the ground

that it might show the animosity between Young and Ong

and thus be exculpatory of Young on the conspiracy

count. However, the court immediately advised the jury

that the conversation could not be considered with

respect to Wah or Hom. The court later instructed the

jury that it could not consider Ong’s statement in

determining whether Young had ever previously engaged

in any act of bribery. The judge did, however, permit the

jury to consider with respect to Ong the fact of his having

made the statement.

These rulings, which were repeated during the court's

charge to the jury, placed Ong's story of the $5000

payment into proper perspective for the jury. They

allowed the jury to consider Ong’s animosity towards

Young without inculpating the latter in an unvecitied

scheme. Given these instructions, we find beyond a

reasonable doubt that the jury convicted Young solely on

the basis of the evidence properly introduced against him.

Cf. United States v. Light, 394 F.2d 908 (2d Cir. 1968).

possibility of prejudice. In light of the overwhelming evidence of guilt and the

failure of detense counsel to make timely motions to omit these allegedly

prejudicial references, we cannot say that the court abused its discretion in

admitting into evidence the tapes and transcripts of or testimony about con-

versations contaming these statements.

-22a

Curtailment of Wah's Cross-Examination

|13] As discussed above, despite expressions of concern

about the mention of riarcotics, references to that issue

were injected during Granelli’s testimony. After the

government completed its direct examination of the INS

investigator, the subject of narcotics was addressed

directly by Wah's counsel, Mr. Herman. In his cross-

examination, Herman asked Granelli if he had tried to

involve Wah in a narcotics deal. When the court

sustained an objection to this question, Herman

responded by asking Granelli if he had requested of Ong

whether Wah would deal in narcotics. The court

sustained an objection to this question, instructed the

jury about drawing any inference from the question, and

cautioned Herman to avoid this area of interrogation.

After Herman was denied a side bar conference, he asked

Granelli if he had told Ong that he, Granelli, ‘had

people who were eager to get narcotics” from Wah. Judge

Bricant immediately directed Herman to take his seat

and his cross-examination of Granelli ceased.

Wah now renews his claim, initially made at a post-

trial hearing, that limitation of his cross-examination of

Granelli deprived him of his Sixth Amendment right to

confront witnesses against him. Wah claims that the issue

of narcotics had been introduced on direct testimony and

was therefore a proper subject for cross-examination,

especially to allay any suggestion that he was involved in

narcotics. He further contends that the untimely cur-

tailment prevented perusal of other areas of cross-

examination and prevented the eliciting of testimony

relevant to his defense. We find all these claims to be

without merit.

We have already discussed the extent to which nar-

cotics had been mentioned in connection with Granelli's

direct testimony. These references did not directly link

any of the defendants with ongoing illicit activity but

merely demonstrated a relationship among the parties to

23a

the conversation. Thus, Wah was not harmed by the

court's refusal to allow the cross-examination insofar as

he would have attempted only to rebut a supposed in-

ference of his involvement in narcotics. See United States

v. Green, 523 F.2d 229, 237 (2d Cir. 1975), cert. denied,

423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976).

Nor did the order to cease cross-examination after

repeated disregard of the court's rulings unduly prevent

Wah’s effective investigation into other legitimate areas.

We have not been apprised of those areas which were not

adequately covered by Herman prior to cessation of his

cross-examination or by other counsel. Indeed, at the

close of redirect examination, the judge asked all defense

counsel individually if they had any further questions.

Counsel for Wah replied that he had none. During the

post-trial hearing at which Wah first presented this

claim, counsel indicated that he would have liked to

cross-examine with respect to a conversation between

Wah and Kibble that Granelli testified to having

overheard. Wah however, not only failed to address this

matter on recross, but also failed to question Kibble, who

followed Granelli to the stand, about the conversation.

We therefore conclude that the court’s curtailment of

Wah's examination did not impermissibly preclude

inquiry into other subjects.

Finally, we do not agree that the court's order

prevented the jury from having “the benefit of the defense

theory before them” by denying a defendant ‘the ef-

fective cross-examination ... of an adverse witness.”

Davis v. Alaska, 415 U.S. 308, 317, 319-20, 94 S.Ct.

110S, 1112, 39 L.Ed.2d 347 (1974). In Davis, the

Supreme Court ensured a criminal defendant of the right

under the confrontation clause of the Sixth Amendment

to explore through cross-examination the partiality and

motivation of a government witness. 415 U.S. at 316, 94

S.Ct. 1105S. Given the defense theory that the INS in-

24a

vestigators had initiated the requests for payment,

evidence of coercion by the witness would have been most

proper. Wah claims that his questions properly at-

tempted to contribute to this theory by demonstrating

that the INS officers were attempting to coerce defen-

dants into a narcotics scheme, from which the jury could

have inferred an attempt to coerce defendants into a

bribery scheme as well. The basis for these questions was

the tape of the February 6 conversation in which Granelli

inquired about obtaining drugs from Wah. We find that

Wah's argument that he wanted to show coercion in the

narcotics context is too remote and speculative in the face

of the complete absence of any evidence of coercion in the

conversation. Moreover, it is hard to believe that the INS

investigator wearing the recorder would have thus in-

culpated himself in an illegal scheme. We do not believe

that the Court in Davis meant to sanction speculative

expeditions into areas only tangentially related to the

facts in issue in the hope that some basis for implying an

ulterior motive might be found.

Moreover, the total cross-examination was sufficient to

afford the jury a basis to evaluate the defense theory.

Defense counsel preceding Wah’'s counsel had questioned

Granelli at length about his relationship with defendants

in an attempt to prove that he had demanded and ac-

cepted payments long before the time covered in the

indictment. The same theory was argued to the jury in the

opening and closing statements of defense counsel, and

the judge instructed the jury with respect to that defense.

Under these circumstances the curtailment of Wah’'s

cross-examination did not deprive him of any right of

confrontation.

The Government s Summation

The detendants also urge that improprieties and errors

in the prosecutor's summation and rebuttal deprived

25a

them of a fair trial, so that their convictions should be

reversed. We disagree.

14, 1S] In view of the defense insinuated by the cross-

examination of the government's witnesses and argued to

the jury in the summation of counsel, we find nothing in

the summation and rebuttal of the prosecutor which was

not warranted by the evidence. Al | the prosecutor's

arguments which were of doubtful propriety were

adequately and immediately corrected by the trial judge

upon objections of counsel. The other matters now

complained of do not warrant objections of appeal and

surely did not seem to defense counsel to warrant ob-

jection at the time. Although under certain. cir-

cumstances-—as where the trial judge repeatedly brushes

aside valid objections—we do not expect counsel to

continue to make objections before the jury, here the trial

judge responded effectively to all the defense objections

during the summation. In such a case, we give little

weight to the matters later complained of for the first

time on appeal. United States v. Briggs, 457 F.2d 908,

911-12 (2d Cir.), cert. denied, 409 U.S. 986, 93 S.Ct.

337, 34 L.Ed.2d 251 (1972); United States v. Perez, 426

F.2d 1073, 1081 (2d Cir. 1970), aff'd, 402 U.S. 146, 91

S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v.

Indiviglo, 352 F.2d 276, 280 (2d Cir. 1965), cert. denied,

383 U.S. 907, 86 S.Ct. 887, 1S L.Ed.2d 663 (1966).

We find only one instance which is even worthy of

comment. During the government's rebuttal. the

Assistant United States Attorney characterized Ong as

“Chinatown’s chief corruptor for twenty years.”” Ong

maintains that this description of him in the hierarchy of

corruption was unsupported by the evidence and

t We note that while the appellants complain of statements made by the

prosecuior in his rebuttal argument. the appellants have tailed to provide the

court in their appendix with copies of their own summation. In such cases

obviously the court ought to be providcd with copies of the summations to

which the rebuttal of the prosecutor was addressed.

26a

suggested to the jury that the government held in-

formation not introduced at trial that implicated Ong in

other crimes. Ong does not claim that the accusation that

he engaged in illicit activities over an extensive period of

time is itself inaccurate, since the tapes received in

evidence revealed that he bragged of having bribed police

officers and having supplied them with additional

vratuities long before meeting Grannelli and Kibble.

However prejudicia! this characterization may now

appear, no objection was made at trial. Perhaps this was

because the statement was made parenthetically in the

course of an argument concerning a wholly unrelated

matter and thus was unlikely to be noticed even by an

attentive listener. Moreover, we see no reason to believe

that the addition of an adjective that exaggerated Ong’'s

otherwise conceded illicit activity would in itself constitute

reversible error. In United States v. Gonzales, 488 F.2d 833

(2d Cir. 1973), and Hall v. United States, 419 F.2d 582 (Sth

Cir. 1969), cited by Ong as cases in which prejudicial

characterizations required reversal, the appellation

complained of was combined with additional and persistent

errors on the part of the prosecuting attorney or the district

court. In neither case did the appellate court hold that the

improper characterization alone was a basis for reversal.

See United States v. Guidarelli, 318 F.2d 523 (2d Cir.).

cert. denied, 375 U.S. 828, 84 8.Ct. 72, 11 L.Ed.2d 60

(1963). In light of the overwhelming evidence against Ong.

see United States v. Benter, 457 F.2d 1174, 1178 (2d Cir.)

cert. denied, 409 U.S. 842. 93 S.Ct. 41, 34 L.Ed.2d 82

(1972). we find beyond a reasonable doubt that the

placement of Ong at the pinnacle of corruption in

Chinatown could not by ttself or combined with any other

error have had the ettect of improperly prejudicing the

detendant.

We therefore conclude that none of the prosecutor's

comments, singly or cumulatively, had the effect of

depriving any of the defendants of a fair trial.

Convictions attirmed.

27a

APPENDIX “B”

ORDER DENYING STAY

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and tor the Second Circuit, held at the

United States Court House, in the City of New

York. on the 29th day of November, one thousand

nine hundred and seventy-six.

UNITED STATES OF AMERICA,

Plaintift-Appellee.,

BENNY ONG, WONG WAH,

TOM HOM. ALBERT YOUNG,

Detendants-Appellants.

lt is hereby ordered that the motion made herein by

counsel for the appellant Benny Ong by notice of motion

dated November 22, 1976 to stay issuance of the mandate

pending application to the Supreme Court of the United

States for a writ of certiorari pursuant to Rule 41(b) of the

Federal Rules of Appellate Procedure be and it hereby is

denied.

DENIED

28a

s/J. Edward Lumbard

J. EDWARD LUMBARD

s/Henry J. Friendly

HENRY J. FRIENDLY

s James O. Oakes

JAMES L. OAKES

Circuit Judges

29a

APPENDIX C

Excerpts from Joint Appendix filed in the United States

Court of Appeals for the Second Circuit

No. 76;1087

UNITED STATES OF AMERICA,

Appellee.

VS.

BENNY ONG, WONG WAH, TOM HOM and

ALBERT YOUNG,

Defendants-A ppellants.

* eK K

|F22| [Prosecutor on Summation|

I submit to you, ladies and gentlemen, that these

defendants were not poor, unsophisticated people. On.,

the Secretary of the powerful Hip Sing Association,

nationwide, the Hip Sing Association. Wong, Secretary of

the Lai Look Association. Young, Secretary, and by his

own admission, boss of the 4,000 members of the Tsung

Tsin Association. Hok, manager of at least two gambling

houses in his time, and for twenty years associated with

illegal gambling in Chinatown.

The evidence demonstrates overwjelmingly that these

were not simple, naive men unaware of what they were

doing. They had businesses, illegal businesses to take care

of, and they were not above corrupting Government of-

ficials to do it.

**e KK *

30a

C52 |

Under Mr. Markewich’s theory of this case, his theory of

oppression, Mr. Ong. Chinatown’s chief corruptor for

twenty years, would have immunity to illegally gamble,

illegally bribe and anything else, because that’s what

Society has done to him. It’s preposterous, ladies and

ventlemen. It's designed to grab at your sympathy and to

vive Mr. Ong a free license to commit crime.

3la

APPENDIX D

Excerpts from tape recordings of conversation of February

6, 1974

G. Hey Benny. what happened at 57 Mott Street?

Frank's barber shop.

O. Ah---

G. They took a pound of stuff out of there.

O. Took two pounds.

G. Iwo pounds? Whew!

O. That's right — Thank Fran’ got all that stuff there.

G. It was Frank's?

QO. The co-owner of this place.

G. Who's that?

O. FRANK!

G. Oh, year, right. He’s stupid. What's he doin leavin’ it

in the barber shop?

QO. More easy to get ‘em out.

G. Oh, its easier to get it out of there?

O. Hide ‘m up there.

G. Hides it?

32a

O. Hides in all the pipe.

K. In the pipes?

Q. The sink.

K. Whew!

QO. Under the sink.

K. Iwo pounds! He took a beating!

QO. Quite a few dollar. A lot of money's in there.

K. How much? About?

OM. About 20,000.

K. 20,000? Whew!

QO. May be more. Two pounds — its the real stuff.

G. What's it. #4% Is it white or was it brown rock?

O. White. That’s what they said — I don't know. To me

~ to me — don't know nothin’ on those things. (Laughs)

QO. Yeah — that’s true — don't do that no more.

QO. Oh! Oh veah.

AK HE K

QO... . 1 know, but that’s not my business. He’s a bad —

he’s a bloody mouth anyway — his mouth is — bip-bip-bip-

bip-bip. Atter he drink a couple — after he get a couple a

drink -— he teil you everything.

33a

K. Yeah?

G. We drank with him a couple of times — he seemed

like he never says nothing. You know — bad — He don’t —

ah —

O. Sometime he spoke too much. He tell you everything.

**A KK *

K. Yeah — Benny was saying they — they caught some

people up on Mott Street last night — we saw it in the

paper —

T. Humm—

G. Up in the barber shop.

K. Frank's barber shop.

T. Oh — not last night — before last night —

K. We saw it in the paper.

T. Yeah — betore last night.

K. Benny told us about it —

T. You know — the guy’s stupid.

K. Yeah.

T. Yeah.

K. Stupid to get caught.

**K KK *

34a

G. Did you hear about 57 Mott?

W. 357?

G. Frank's barber shop?

W. 57 Mott Street? Yeah?

K. (inaudible) . ... it was in the paner.

W. When?

G. They got two pounds outa the place.

W. Yeah?

G. Two pounds of the white stuff?

(Laughs) When?

G. Cops. Maybe two days ago.

W. Two days ago? (inaudible)

W. Benny told us Franks stupid.

(Laughs) that’s the trouble you know — not careful

down there. . . Wi'l you know ah the people wanna make

casy way you Know easy money you know . . . (laughs)

K. Hey — nothing wrong » ih easy money.

| know nothing wrong but — but lotta people . . . you

vot two feet right? One toot put in the bank — one foot put

in the jail you Know.

G. (Laughs)

W. Either way you take it. . . Either way you take it you

know.

You just gotta be caretul.

35a

W. If your lucky you know — you gotta you gotta put in

the bank you know.

G. Put it in the bank.

W. Yeah.

G. (Laughs)

W. One foot step in the bank one foot step in the jail

(laughs). They're crazy — you know —

36a

APPENDIX E

Transcript of tape recording of conversation of February 6,

1976

x eK K

O. LEE LOUIE — Yeah — he’s the guy vou should catch.

He get a lot of that white stuff.

G. He's always stoned — smoking.

QO. Yeah. drink — What he don't use — he sell ‘em.

Q. Hey you know anybody, that’s got ah — we've got a

lot of dough saved up.

O. Yeah? Why?

Gs. We could do —— maybe — maybe a key.

©. (in Chinese) He -—— he — he said he has heroin, tt

anyone wants it, one kilo — two pounds.

W. (Laughs)

G. Mavbe a key.

©. loo much money (laughs)

Gs. Why? How much do they want?

QO. (in Chinese) Iwo pounds — how much ts tor each

pound

W. | don't know.

G. It’s not mor. than 104 pound — ts tt?

ho

37a

U. ien pound — nah. ‘

G. No, ten thousand a pound.

W. I never saw it before (laughs)

QO. (in Chinese) He says ten thousand per pound.

W. That's a lot of money.

O. I don't think you gonna get that much today. Nobody

— know you gonna delivery? (laughs)

K. We're going to go up to Connecticut

O. Hah?

K. We're going up to Hartford again.

O. Yeah.

G. If you hear anything — let me know. Alright?

Be caretul.

G. Well, | know, you got to be careful around Chinatown

especially.

Yeah, Chinatown.

Too much bullshit.

Chinatown don't tell anybody — trust me-like-ah-

*eEK *

K. We're got enough for a key now. Between the two of

us.

38a

* * *k * *

O. You see I-I afraid those things I-I tell you the truth,

too old (laughs) | don't want to get involved.

W. You know, we don't wanna take our money.

K. Well if you know someone that you can trust, that’s

alright.

QO. Can't get rid of it right away, you know-that’s the

trouble. See if —

QO. If we — we're gonna — we're going up to Hartford

again,

If I get it to him, then, he don't give me no money.

You understand what 1 mean?

(GG. We — no we — we would give you the money, but we

just — we ain't got enough — ah you know, 10 pounds or

something — we just want a small amount — this is for us.

The boss don't know. If you ever meet our boss, don't say

anything.

O. Um.

G. You know, he — he don’t mind the gambling but he’s

not too crazy about — ah —

©. This thing.

Gr. Yeah.

Q. This thing involved.

QO. It’s a little different.

Don't ever use that. 1 you ever do this, your dead

duck!

39a

K. No.

G. No.

**e eK *

O. See — he get out of. He involved in a lot of thing. I tell

‘em (inaudible) get smart. He's a member of the Hip Sing.

G. Yeah. The Hip Sing is a powerful big group, isn't it?

QO. (Inaudible) they're all the same like that. They just

got a litthe money, that’s all.

G. A little? Caughs)

Q. (laughs)

G. How much — how much money does the Hip Sing

make? How much money do you think?

QO. Property — couple of million.

QO. Couple of million bucks?

K. Property.

QO. Oh in property.