Petition — Fife v. United States

[~ Supreme Court, U. S

FILED

JAN 19 977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

=a.

76-1000

JAMES E. FIFE . . . . . . Petitioner

versus

UNITED STATES OF AMERICA . ‘ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SIXTH CIRCUIT

COURT OF APPEALS

JOHN TIM McCALL

835 West Jefferson Street

Louisville, Kentucky 40202

Counsel for Petitwner

Member of the Bar of the Supreme

Court of the United States

WESTERFIELO-BONTE CO., 619 W. KENTUCKY—P.O, BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

» PAGE

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Statement of the Case ............. ccc ee ceeeeccees 2- 3

Reasons for Granting the Writ .................... 4-11

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Appendix A: Opinion of the United States Sixth

Comes CS GE BOI a oc ei dccccicsedicctsn 13-26

Appendix B: Statutes ............0cccceceeeeeues 27-29

TABLE OF CITATIONS

Cases: —

Alford v. United States, 282 U. S. 687, 51S. Ct. 218,

es 4, 5

Brookhart v. Janis, 384 U. S. 1, 86 S. Ct. 1245,

ee EE I . cc cs cneececctvacecctea 4-5

Bruton v. United States, 391 U. S. 123, 88 S. Ct.

1620, 20 L. Ed. 2d 476 (1968)................. 10, 11

Giglio v. United States, 405 U. S. 150, 92 S. Ct. 963,

rs rs ee ee OUD, ys cubs ces exe ces naces 6

Good v. United States (5th Cir. 1969), 410 F. 2d

De acas ed candihanedesusudewencenue Boies a

Pay’ on v. United States (D.C., Cir., 1955), 222 F. 2d

Rs dint sie aeatee Veee obs tak pide 9, 10

Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065,

A ss a nn ceubenedhadcdcaee 4

Smith v. Illinois, 390 U. S. 129, 88 S. Ct. 748,

ns 00s os acne kCansavdnndenbae 4

United States v. Baete (5th Cir., 1969), 314 F. 2d

I Ghee EL td dun 6 noun epi ald ate bain while 10

United States v. James (5th Cir., 1974), 495 F. 2d

DP PE iedutccdcks kat eednacadddusee ons veanes 8

United States v. Kimbrew (6th Cir., 1967), 380 F, 2d

ES chads eeu keine newbs dd ca ean deeaheue 9, 10

Statutes:

18 U.S.C., Sections 1852, 1341, 371, 2.............. 2

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

JAMESE. Fire - - - - - = Petitioner

v.

UniTep STATES OF AMERICA~ - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SIXTH CIRCUIT

COURT OF APPEALS

OPINION BELOW

The opinion of the Sixth Circuit Court of Appeals

was entered on December 21, 1976. This decision will

not be published. A copy of that opinion is presented to

the Court in Appendix A, attached hereto.

JURISDICTION

The opinion of the Sixth Circuit Court of Appeals

was rendered and entered on December 21, 1976. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

A. Whether the Petitioner’s Sixth Amendment Right to

Confrontation Was Violated by the Court’s Refusal] to

Allow Petitioner to Adequately Cross-Examine the

Prosecution’s Witness, Joseph Laverich.

B. Whether It Was Prejudicial Error for the Trial Court

To Admit Into Evidence a Signature Card From a Bank

Without Pretrial Discovery by the Defendant, In Spite

of a Court Order Directing Discovery Pursuant to Rule

16(b) of the Federal Rules of Criminal Procedure.

C. Whether Petitioner Was Denied His Right to a Fair

Trial Guaranteed by the Fifth Amendment to the United

States Constitution When the Trial Court Accepted a

Co-Defendant’s Guilty Plea During Trial.

STATUTES INVOLVED

18 U.S.C. §1952, at page 482; 18 U.S.C. §1341 at

page 425; 18 U.S.C. §371 at page 284; and 18 U.S.C.

§2 at page 237. The verbatim language of these statutes

is set forth in Appendix B, attached hereto.

STATEMENT OF THE CASE

On May 4, 1970, a building occupied by Marra In-

dustries in which petitioner had a financial interest was

damaged by fire. On April 28, 1975, petitioner and

several others were charged in a fifteen (15) count

indictment by a Federal Grand Jury with offenses

amounting to racketeering and mail fraud conspiracies.

The Honorable Rhodes Bratcher presided over the trial

by jury in the United States District Court for the

3

Western District of Kentucky, which was held October

6 through October 17, 1975.

At trial, a witness against petitioner, Mr. Joseph

Laverich, who had been granted total immunity, was

excused from answering questions as to his motives for

testifying as well as so common a question as his address.

The Government admitted into evidence a signature

card which had not been made available to petitioner

pursuant to Rule 16(b) of the Federal Rules of Criminal

Procedure. The trial court allowed the Government to

circumvent the Rule and imposed no sanctions on the

prosecution.

Finally, the trial court allowed a co-defendant,

closely linked to petitioner, to plead guilty during trial

and advised the jury of the plea, to the prejudice and

over the objections of the petitioner.

The jury retired and found petitioner guilty as

charged of eight (8) counts of the indictment and not

guilty to seven (7) counts of the indictment. On Oc-

tober 24, 1975, judgment and commitment was entered

ordering petitioner to serve five (5) years on all eight

(8) counts, with seven (7) of the sentences to run con-

currently and one (1) to run consecutively with the

others. Notice of Appeal was filed on October 24, 1975.

On December 21, 1976, the Sixth Circuit Court of Ap-

peals filed an opinion affirming the conviction (Ap-

pendix A).

REASONS FOR GRANTING THE WRIT

A. Petitioner’s Sixth Amendment Right to Confrontation

Was Violated by the Court’s Refusal to Allow Petitioner

to Adequately Cross-Examine the Prosecution’s Witness,

Joseph Laverich.

Joseph Laverich, who actually set the fire in this

case, was called as a witness against petitioner. Before

his testimony, Mr. Laverich was granted complete im-

munity from prosecution. On direct examination, Mr.

Laverich admitted his role in the current case as well

as his role in many other activities, including setting

other fires and committing a number of burglaries.

Upon cross-examination, petitioner asked the wit-

ness his address. The Government objected to this

question and the Court sustained that objection. This

Court has stated many times in a number of cases, in-

cluding Alford v. United States, 282 U. 8. 687, 51S. Ct.

218 75 L. Ed. 624 (1931) ; Smith v. Illinois, 390 U. 8.

129, 88 8. Ct. 748, 19 L. Ed. 2d 956 (1968) ; Pointer v.

Texas, 380 U. 8. 400, 85 8. Ct. 1065, 13 L. Ed. 2d 923

(1964), that the exclusion of cross-examination of a

Government witness as to his residence, is prejudicial

error. In Smith, supra, the Court stated that when

credibility of a witness is in issue, the very starting

point in exposing falsehood in bringing out the truth

is asking his address in order to place the witness in his

proper setting. In Pointer, supra, this Court held that

to forbid this most rudimentary inquiry is to effectively

emasculate the right of cross-examination. In Brook-

hart v. Janis, 384 U. 8. 1, 86 8. Ct. 1245, 16 L. Ed. 2d

5)

314 (1965), this Court held that the denial of cross-

examinatica is constitutional error of the first magni-

tude and no amount of showing of want of prejudice

could cure it. |

When the Government objected to the question, they

stated that the question appeared to be ‘‘totally irrele-

vant and does nothing.’’ Alford, supra, directly ad-

dressed this issue, however, and in that opinion the

Court stated that ‘‘it is the essence of a fair trial that

reasonable latitude be given the cross-examiner even

though he is unable to state to the Court what facts the

reasonable cross-examination might develop. Preju-

dice ensues from the denial of the opportunity to place

the witness in his proper setting and to put the weight

of his testimony and his credibility to a test without

which the jury cannot fairly appraise them.”’

The Government alleged that the witness was ap-

prehensive to tell his address, but gave no reasons why

he should be apprehensive. Therefore, by excusing the

witness from answering a very common and proper

question, petitioner’s right of confrontation was initi-

ally violated.

In the same cross-examination period, the petitioner

attempted to ascertain a wituess’ motivation in testify-

ing against petitioner. Again the Government ob-

jected, saying that there were no convictions involved

with the other cases. However, this testimony is di-

rectly related to the immunity given in the present case.

The very credibility of the witness was involved. Mr.

Laverich was the most material witness against the

petitioner and his testimony was extremely relevant to

6

the Government’s generosity regarding future indict-

ments. The jury deserved to know what type of person

the witness was and exactly why he was motivated to

testify in this matter.

When the reliability of a given witness may well be

determinative of guilt or innocence of the accused, this

type of evidence should be admitted. Giglio v. United

States, 405 U. 8. 150, 92 S. Ct. 963, 31 L. Ed. 2d 104

(1971). Petitioner understands that this type of cross-

examination is in the Judge’s discretion, however, in

the circumstances surrounding the case, it is clear that

the witness is getting something very substantial in

return for his testimony. It is a fact that he received

immunity for setting this fire in this particular case,

but the cross-examination was attempting to discover

any other deals that had been made about possibly more

serious criminal activity. For these reasons, petitioner

was denied his right to confront the witness through

effective cross-examination to establish the interest of

the witness involved.

B. It Was Prejudicial Error to Admit Into Evidence a

Signature Card from a Bank Without Pretrial Discovery

by the Defense, In Spite of a Court Order Directing

Discovery Pursuant to Rule 16(b) of the Federal Rules

of Criminal Procedure.

Prior to trial, petitioner made a Rule 16 motion for

discovery, including the items allowed under Rule

16(b), which covers the discovery of tangible evi-

dence, including papers and documents. Petitioner had

no reason to believe that the Government had not com-

7

plied with the Court’s Order to produce all documents.

At trial, however, the Government called as a witness

an official from a bank where the business that was

involved here had an account. At that time the witness

produced a signature card that the petitioner had

signed. This card was not produced prior to trial.

Petitioner immediately objected to the introduction of

this evidence. The prosecution stated that they did not

have the card, that the witness merely produced it at

trial. However, the Government had subpoenaed the

witness and directed him to bring certain records, in-

cluding the signature card. At that point, the Court

refused to admit the card into evidence, but the next day

the Court did allow its introduction, over petitioner’s

objection.

Rule 16(b) delineates several sanctions for noncom-

pliance. They include permitting discovery, granting

a continuance or prohibiting introduction of the evi-

dence in question. The Court did none of these things.

It merely allowed the introduction of the card. The

testimony of the witness did nothing to incriminate the

petitioner, but the card itself was signed by the peti-

tioner. Therefore, by looking at the card the jury

might deduce that the petitioner was guilty by associ-

ation through the testimony that the bank official gave

about the card and another defendant, Ivan Marra, who

pleaded guilty during trial.

Petitioner believes that the Government, by obtain-

ing the card in the manner which it did, was purposely,

trying to circumvent ‘he discovery order and Rule 16.

The Government had intreduced the testimony it de-

8

sired about the card, which did not refer to the peti-

tioner, yet sought to introduce the card itself in order to

incriminate the petitioner through physical evidence

which they could not do through the bank official’s

testimony.

This Court has not addressed this issue in the past,

however, some lower Courts have, and it appears to be

a general rule that if the defendant requests a continu-

ance or asks the Court not to allow the evidence to be

admitted, and substantial rights of the accused are

involved, then the evidence should not be admitted.

Umted States v. James, (5th Cir., 1974), 495 F. 2d 434;

Good v. United States, (5th Cir., 1969), 410 F. 2d 1217.

Petitioner asks this Court to determine what type

of sanction ought to be imposed when the prosecution

fails to comply with the discovery order. In the case

at hand, no sanction was imposed and therefore it may

be assumed that the Government may violate these rules

at will.

C. Petitioner Was Denied His Right to a Fair Trial Guar-

anteed by the Fifth Amendment of the United States

Constitution When the Trial Court Accepted a Co-

Defendant’s Guilty Plea During Trial.

When the trial began, there were three (3) defend-

ants. Midway into the trial, one defendant, Ivan

Marra, expressed his desire to plead guilty and that

plea was accepted by the Court. Petitioner requested a

continuance and a separate trial. That motion was

overruled. At the time of the plea, the Court instructed

the jury that no inference was to be made from the fact

9

of Mr. Marra’s absence. Petitioner objected to this

instruction. Later in the trial, Judge Bratcher de-

termined that the jury must be advised of Mr. Marra’s

guilty plea. Petitioner requested limiting instructions

and objected to the entire matter of advising the jury

of the guilty plea. The Judge gave instructions to the

jury at that point and petitioner moved for a mistrial

which was overruled.

This Court has not established a test to be used as

to whether or not a guilty plea of a co-defendant, made

during trial, is prejudicial error to the defendant or

defendants that remain in trial. Each Circuit has de-

veloped its own test. The Sixth Circuit in the past has

used the aggravating circumstances test set out in

United States v. Kimbrew, 380 F. 2d 538 (6th Cir.,

1967). In using that test, the Court looked at all the

aggravating circumstances to see if there was preju-

dicial error. The Sixth Circuit in Kimbrew used the

decision in Payton v. United States, (D.C., Cir., 1955),

222 F. 2d 794, as one of its bases. In that case the Court

held that the evidence showed a close association be-

tween the co-defendants and one’s guilty plea preju-

diced the other’s right to be tried solely on the evidence.

In Kimbrew the Court found that there was strong and

clear evidence of the defendant’s guilt and since the

Judge had not been requested to give limiting instruc-

tions, there was no prejudicial error in allowing the

co-defendant to plead guilty. In the present case, there

was a minimal amount of proof against the petitioner

and he was in fact acquitted of several counts of the

indictment. Only one witness testified directly about

10

petitioner and that witness was an unindicted co-

conspirator who had been granted immunity. Clearly,

on the basis of Payton and Kimbrew, petitioner could

not be left unprejudiced by Mr. Marra’s guilty plea.

However, in the opinion on this case of the Sixth

Circuit, the Court changed the test they use in de-

termining prejudicial error in a situation such as this.

It decided to use the Fifth Circuit’s test in the United

States v. Baete, 314 F. 2d 782 (1969). In that case the

test is whether the corrective instructions are sufficient.

Based on the decision in Baete, the Sixth Circuit de-

termined that the instructions were sufficient and there

was no prejudice to the petitioner.

Petitioner is left unclear about what test should be

used to determine whether prejudice results from a

guilty plea of a co-defendant during trial and petitioner

requests that this Court adopt one of the tests of the

Circuits involved.

As far as the issue as to whether any instructions

given can effectively avoid prejudice in the jury’s mind,

petitioner would like to cite Bruton v. United States,

391 U. 8. 123, 88 8. Ct. 1620, 20 L. Ed. 2d 476 (1968),

in which the Court considered whether or not instruc-

tions given to a jury to not consider a co-defendant’s

confession implicating the defendant were effective. In

that case the Court said that they could not wipe away

the prejudicial effects of the evidence. The Court

stated ‘‘the Government should not have the windfall

of having the jury being influenced by evidence against

the defendant which as a matter of law they should not

consider but which they cannot put out of their minds.”’

11

The Court further said that it was a naive assumption

that prejudicial effects can be overcome by instructions

to the jury. While Bruton dealt with the confession of

a co-defendant, there does not seem to be a substantial

difference in that case and the case in which a co-

defendant pleads guilty during trial, especially when

the co-defendants are very closely associated as in this

case where they were business partners. ‘‘The risk that

the jury will not or cannot follow instructions is so great

and the consequences of failure so vital to the defendant,

that the practical and human limitations of the jury

system cannot be ignored.’’ Bruton, p. 135. It is im-

possible to determine whether or not petitioner’s case

was affected by Mr. Marra’s guilty plea, but the hazard

was so substantial that petitioner’s request for a peti-

tion for writ of certiorari must be grauted.

CONCLUSION

The reasons for granting the writ, set forth above,

clearly enunciate substantial questions of federal and

constitutional law. These issues have led to a great deal

of confusion in the lower courts and should be settled

by this Court. We urge this Court to grant certiorari

to decide these questions.

Respectfully submitted,

JoHn Tim McCatu

Counsel for Petitioner

Member of the Bar of the Supreme

Court of the United States

APPENDIX

er

13

Not for

Publication

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1366

No, 76-1367

Unrrep States or AMERICA,

5

Appellee, AprpeEatL from the

United States Dis-

+ trict Court for the

James EB. Fire and Atvin Kier, ae of

Appellants. J eee ts

V.

Decided and Filed December 21, 1976.

Before: Puttures, Chief Judge; McCrer and Livety,

Circuit Judges.

Live.y, Circuit Judge. The appellants, Fife and Klein,

were indicted by a grand jury of the Western District of

Kentucky for conspiring to travel in interstate commerce

for the purpose of committing arson and of conspiring to

use the mails to defraud. They were also indicted in six

substantive counts charging violations of 18 U.S.C. § 1952,

interstate travel for the purpose of committing arson, and

eight substantive counts of violating 18 U.S.C. 4 1341, use of

the mails to defraud. Both appellants were convicted of the

14

conspiracy charge and three substantive counts of inter-

state travel to commit arson as well as charges of mail

fraud. A co-defendant, Ivan Marra, pled guilty during the

trial to the conspiracy count and one substantive count of

interstate travel to commit arson. Each appellant was sen-

tenced to serve five years on count one, the conspiracy

count, and five years on one of the substantive counts, to be

served consecutively to the conspiracy sentence; each was

sentenced to serve concurrent sentences on the remaining

substantive counts.

A building in Louisville, Kentucky in which the appel-

lant Klein had a financial interest burned on May 4, 1970.

There was abundant evidence of arson. The building was

insured against loss by fire by the Hartford Insurance

Group, and Klein eventually received $160,000 from Hart-

ford in settlement of the fire claim. The co-defendant Marra

made a claim against Fireman’s Fund Insurance Company

for loss to the contents of the building under a policy he

had obtained upon representation to Fireman’s Fund that

he was conducting a plastics business as lessee of the build-

ing. The evidence disclosed that Marra had moved some

materials into the building tg give the impression that a

business was being conducted, but that actually this was

not the case. Fireman’s Fund never paid Marra on his

claim. The arrangements for the fire and the actual setting

thereof involved trips between Pennsylvania and Kentucky

by the defendants and others acting in concert with them,

and the mails were used in filing loss claims with the insur-

ance companies. Neither appellant questions the suffic-

iency of the evidence.

Appeal of Alvin Klein (No. 76-1367)

Klein made a motion under Rule 6(e), Fed. R. Crim. P.,

for production of the grand jury minutes, charging that the -

indicting grand jury had not heard witnesses, but had actu-

15

ally only been “briefed” by government agents concerning

evidence which had been presented to an earlier grand jury

in the Western District of Pennsylvania. Following denial

of this motion Klein requested the district court to conduct

an in camera examination of the Kentucky grand jury tran-

script. Seeking to distinguish Costello v. United States, 350

U. 8S. 359 (1956), and this court’s decision in United States

v. Hoffa, 349 F. 2d 20 (1965), aff’d, 385 U. S. 293 (1966),

he argues that it is his contention that there was no evidence

presented to the indicting grand jury, not that the evidence

presented to the grand jury was hearsay or otherwise in-

competent. He concedes that a motion under Rule 6(e) is

addressed to the sound discretion of the trial judge, but

maifitains that there was an abuse of discretion in denying

the motion in this case.

The Court of Appeals for the Second Circuit reversed a

conviction and dismissed an indictment where a witness

before a grand jury testified extensively about a drug trans-

action and the grand jury was not informed that the testi-

mony was based on hearsay and was misled to believe that

the witness was testifying from personal knowledge. United

States v. Estepa, 471 F. 2d 1132 (2d Cir. 1972). Thereafter

the Second Circuit held that when it appears that a grand

jury had heard only hearsay testimony, on motion, the dis-

trict judge should examine the grand jury minutes in cam-

era. United States v. Ramirez, 482 F’. 2d 807 (2d Cir.), cert.

denied sub nom. Gomez v. United States, 414 U. 8S. 1070

(1973). Both Estepa and Ramirez were addressed to a

practice of the United States Attorney’s Office for the

Southern District of New York from which the court con-

cluded that grand juries were being misled by the use of

hearsay witnesses rather than eyewitnesses and that in

some cases there was a high probability that the grand

juries would not have returned indictments if eyewitness

16

testimony had been presented. It is not contended that such

a situation existed in the present case.

The requirement of Rule 6(e) is that the defendant must

make “a showing that grounds may exist for a motion to

dismiss the indictment because of matters occurring before

the grand jury.” In the absence of such a showing, the

proceedings of a grand jury are required to be kept secret.

United States v. Wilkinson, 513 F. 2d 227 (7th Cir. 1975) ;

Truchinski v. United States, 393 F. 2d 627 (8th Cir.), cert.

denied, 393 U. 8S. 831 (1968).

In his motion before the district court counsel for the

defendant Klein stated that it was his “undertanding” that

the grand jury which had returned the indictment was not

the grand jury which had heard the witnesses in the case.

This was a mere conclusion of the defendant without any

factual support. Actually the chief witness for the govern-

ment testified twice at the trial that he had appeared before

the grand jury in Louisville. We conclude that the defend-

ant made no showing of the existence of grounds for a mo-

tion to dismiss the indictment and that the district court

did not abuse its discretion in denying the motion. United

States v. Barnes, 313 F. 2d 325, 326 (6th Cir. 1963).

Klein next contends that count one (conspiracy) and

count three (interstate travel for the purpose of committing

arson) of the indictment charged him with identical of-

fenses and that the counts therefore merged, precluding

separate punishment on the two counts. Count three charged

that Klein caused travel in interstate commerce by one of

the actual arsonists and he maintains that this is precisely

the same as one of the overt acts with which he is charged

under count one. The government argues that Klein’s con-

tention is undercut by the settled principle that a person

may be convicted both of a substantive offense and a con-

spiracy to commit the same substantive offense.

i

17

The test for determining if an indictment charges one

offense or separate offenses was established by the Supreme

Court in Blockburger v. United States, 284 U. S. 299, 304

(1932). In lannelli v. United States, 420 U. S. 770, 785

(1975), the Court pointed out that there may be a “substan-

tial overlap” in the proof offered to support two charges but

that the Blockburger test is satisfied so long as “each re-

quires proof of a fact that the other does not. . . .” In

United States v. Austin, 529 F. 2d 559 (6th Cir. 1976), the

indictment was drawn in such a way that the substantive

offenses “in effect charged the same agreement or concert

of action . . .” involving the defendant and other persons

as was charged in the conspiracy count. Under these cir-

cumstances we held that there was a merger of offenses.

The indictment in the present case is not drawn in the same

way as the indictment which the court considered in Austin.

Of course the essence of a conspiracy is an agreement to

commit an offense. A conviction under count one required

proof of an agreement. Count three, on the other hand,

charged interstate travel and causing interstate travel by

the arsonist. The fact that the offenses charged in the sub-

stantive counts all related to a single event which was the

ultimate purpose of the conspiracy is immaterial. The

substantive offenses do not require an agreement whereas

the conspiracy does. There may be conviction and punish-

ment both for a conspiracy and for aiding and abetting in

commission of a substantive offense so long as the “separate

offense” test of Blockburger is met. Pereira v. United

States, 347 U. S. 1 (1954). Essentially the same argu-

ments as those made by Klein in this case were considered

by the court in United States v. Bradley, 421 F. 2d 924,

927-28 (6th Cir. 1970), where the court stated:

The commission of a substantive offense and a con-

spiracy to commit it are separate and distinct crimes,

18

and a plea of double jeopardy does not arise on a con-

viction for both. Pinkerton v. United States, 328 U. S.

640, 643, 644, 66 S. Ct. 1180, 90 L. Ed. 1489; Pereira v.

United States, 347 U.S. 1, 11, 74S. Ct. 358, 98 L. Ed.

435 (1953); Callanan v. United States, 364 U. S. 587,

590, 81 S. Ct. 321, 5 L. Ed. 2d 312 (1960). Neither does

a conviction for a substantive offense in any way merge

a conspiracy charge into the substantive crime. Cal-

lanan v. United States, supra, 364 U.S. at 587, 81 S. Ct.

321. In Pereira, supra, 347 U.S., at 11, 74 S. Ct. 358,

the Court specifically held that aiding and abetting,

under the facts of that case, was a separate crime from

couspiring. We can find no meaningful distinction in

the facts presented here.

The other issues raised by Klein do not require extended

treatment. He contends that it was an abuse of discretion

for the district court to exclude evidence that he had sub-

mitted to a polygraph test and that Hartford had relied

upon it in settling his insurance claim. This court has

recently reiterated its position that the result of a poly-

graph test is not competent evidence. United States v.

Mayes, 512 F. 2d 637 (6th Cir.), cert. denied, 422 U. S. 1008

(1975) and sub nom. Cook v. United States, 423 U. 8. 840

(1975). Since polygraph evidence itself would have been

incompetent, there was no abuse of discretion in excluding

testimony that a polygraph test had been taken. Klein

contends further that the district court committed prej-

udicial error in admitting testimony that the occupation of

Merrill Klein (no relation to appellant) was that of

“arsonist.” His argument on this point seems basically con-

cerned with the fact that the District Judge ruled similar

evidence inadmissible at an earlier stage of the proceedings.

However, at the time the evidence was admitted there had

been a great deal of testimony concerning arson and the

19

identification of Merrill Klein as an arsonist was clearly

relevant. Appellant Klein also contends that the district

court erred in admitting a letter in evidence which had been

written by a government witness to himself setting forth

the details of the conspiracy. United States v. Walsh, 305

F. 2d 821 (6th Cir.), cert. denied, 371 U. S. 876 (1962),

cited by Klein is inapposite. The decision to admit or ex-

clude evidence is within the discretion of the trial judge and

we perceive no abuse of discretion in the rulings complained

of.

Appeal of James E. Fife (No. 76-1366)

Appellant Fife argues that he was prejudiced by the fact

that a co-defendant, Ivan Marra, pled guilty during the

trial and that the court advised the jury of this occurrence.

Upon first receiving the guilty plea of Marra the court

merely advised the jury that something had transpired

which made it no longer necessary for Marra and his coun-

sel to be present and that he was no longer involved in the

cease. Thereafter, counsel for appellant Klein requested

the court to instruct the jury of the reason for Marra’s

withdrawal. Counsel for Fife objected and moved for a

mistrial when the court announced that the jury would be

informed and instructed that no inferences could be drawn

from Marra’s guilty plea in their consideration of the

charges against Klein and Fife. The court did then advise

the jury of Marra’s guilty plea and gave a comprehensive

instruction that the jury should draw no inferences with

respect to the case against the remaining defendants and

that the guilty plea would in no way influence them in the

decision which they would be required to make with respect

to the other two defendants.

Fife relies primarily upon Payton v. United States, 222

F. 2d 794 (D.C. Cir. 1955), in which it was held prejudicial

error for the court to receive a guilty plea in the presence

20

of the jury and then emphasize this fact as the trial pro-

ceeded. The court of appeals pointed out that it was par-

ticularly prejudicial because the evidence showed a close

association between the co-defendant who had pled guilty

and the defendant whose trial continued. So far as may be

ascertained from reading the reported decision, the trial

court in Payton did not give a corrective instruction to the

jury as was done in the present case. In United States v.

Kimbrew, 380 F. 2d 538 (6th Cir. 1967), the court held that

it was not error to permit a co-defendant to change his plea

from not guilty to guilty in the presence of the jury, though

the reviewing court must be sensitive to any aggravating

circumstances. In Kimbrew there was no request for a

corrective instruction and the conviction was affirmed.

Fife argues that there were aggravating circumstances

in the present case in that testimony had linked Marra and

Fife as business associates and they had been described as

being together about one week before the fire. On the other

hand, we do not have the aggravating circumstance found

in Payton of several references by the court to the guilty

plea without instructing the jury that it was not to draw

any inferences from this development. We believe the Fifth

Circuit articulated the proper test in United States v. Baete,

414 F, 2d 782, 783 (1969), where it stated that in cases such

as this the appellate court should focus its attention care-

fully on “the sufficiency of the corrective instruction.” This

test is particularly applicable in the present case where one

of the remaining codefendants requested the court to advise

the jury of the guilty plea and the other objected. We have

carefully examined the corrective instruction given by Dis-

trict Judge Bratcher and conclude that it was sufficient to

remove any prejudice which might otherwise have flowed

from the jury’s knowledge of Marra’s guilty plea.

Prior to trial, appellant Fife made a motion pursuant

to Rule 16(c), Fed. R. Crim. P., for production of all

21

documents and other tangible items in the possession,

custody or control of the government which might be ma-

terial to the preparation of the defense. This motion was

granted, but the documents disclosed to the defendants did

not include a bank signature card with reference to a

deposit in a Cleveland, Ohio bank in the name of Marra

Industries. An officer of the Cleveland bank appeared pur-

suant to a government subpoena and brought with him bank

deposit statements and a signature eard for the account

of Marra Industries bearing the signatures of Ivan Marra

and the appellant Fife. Fife objected to production of the

signature card on the ground that the government had not

produced it in compliance with the order under Rule 16.

The court excluded the signature card at that time. When

the witness was recalled later, the court permitted the

signature card to be received in evidence. At this time the

attorney for the government pointed out that copies of the

ecard had been made available to the defense two days

earlier.

Fife argues that so long as the bank official was only

permitted to testify that the account has been opened the

jury did not know that he, Fife, had any connection with

the bank account, and that it was prejudicial to reveal this

fact through admission of the signature card which had not

been furnished prior to trial. We fail to see prejudice in

the ruling of the trial court. Fife never denied that he was

associated with Marra, but insisted that he made an invest-

ment in Marra Industries thinking that it was a legitimate

business enterprise. Furthermore, there was direct evi-

dence of Fife’s association with Marra in addition to the

fact that both had signed the signature card. There was no

reversible error in the district court’s handling of this

matter.

Fife contends that his Sixth Amendment right to con-

front witnesses against him was infringed by the limita-

22

tions which the district court placed on his cross-examina-

tion of the government witness, Joseph Laverich. Laverich

was the only witness who implicated Fife in the burning of

the bakery building, and Fife denied any involvement.

Thus the jury had to make a credibility determination with

respect to conflicting testimony of Fife and Laverich. Cf.

Smith v. Illinois, 390 U. S. 129, 131 (1968). Fife argues

that his cross-examination of Laverich was improperly

restricted in two respects.

At the beginning of the trial, counsel for Fife requested

an FBI “rap sheet“ on Laverich. The government at-

torneys reported te Fife’s counsel that it had been learned

through a telephone call to Washington that the FBI did

not have a rap sheet on the witness. Defense counsel was

informed that the witness had two misdemeanor convic-

tions, but no felony convictions. Near the end of cross-

examination of Laverich by counsel for Fife one of the

prosecuting attorneys informed counsel and the court that

a second telephone call to Washington had produced the

fact that a rap sheet on Laverich was in existence. The

government attorney had a handwritten copy of the con-

tents of the rap sheet and this was shown to the District

Judge and Laverich in chambers. Counsel for Fife was

permitted to ask Laverich about each item on the hand-

written sheet out of the presence of the jury. Laverich

stated that he had not been convicted of a felony within ten

years of the time of trial and that he was found innocent by

a jury of a charge of attempted murder which was shown

on the handwritten sheet. Counsel for Fife did not cross-

examine Laverich further in the presence of the jury.

Prior to the above proceedings counsel for Fife had at-

tempted to cross-examine Laverich extensively about the

attempted murder charge upon which he had been acquitted.

The district court sustained objections to such questions

and counsel stated that he believed the Department of

eee

23

Justice Strike Force attorneys had assisted Laverich in

winning an acquittal in the attempted murder case in order

to induce him to testify against Fife in the present case.

Counsel admitted that he had no information to this effect,

but wanted to attempt to develop this theory. The district

court permitted Fife’s attorney to introduce a memorandum

of understanding between Laverich and the prosecuting at-

torneys and required Laverich to read this memorandum to

the jury. Laverich testified that he received immunity and

was not named as a defendant in the case against Klein,

Marra and Fife.

Fife was not prejudiced by the delay of the government

in producing the “rap sheet.” Furthermore, the District

Judge did not abuse his discretion in sustaining objections

to questions concerning a charge on which Fife had been

acquitted by a jury. This case is totally unlike Giglio v.

United States, 405 U. 8. 150 (1972), where the prosecution

failed to disclose to the jury the fact that the government

had made a promise of leniency in return for the testimony

of a key witness. The jury was fully informed as to

arrangements between Laverich and the government, and

Fife’s attorney was free to argue inferences from the known

facts. However, counsel for Fife was not entitled to harass

the witness with questions about a serious charge upon

which a jury had acquitted him, based on counsel’s personal

theory of an illegal agreement between the government

and Laverich which is totally unsupported by the record.

The second, and more serious charge of prejudicial

limitation of cross-examination relates to the residence

address of Laverich. On direct examination Laverich testi-

fied that he lived in a residence in Greensburg, Pennsylvania

and had lived there for two years at the time of the trial.

The prosecuting attorney objected when counsel for Fife

on cross-examination asked the residence address of Lave-

rich in Greensburg, Pennsylvania, and the court sustained

24

the objection. Immediately thereafter there was a bench

conference at which counsel for Fife said that he needed

the information to develop his cross-examination and for

further investigation of Laverich. The government at-

torney stated, “This witness is apprehensive to tell it.”

The district court stated that he did not want to contribute

to the apprehension of the witness and that the name of the

town where Laverich resided should be sufficient for cross-

examination and investigation.

Counsel for Fife then conducted a detailed cross-ex-

amination during which Laverich testified that he was not

in custody at the time of the trial, that he had participated

in the burning of a hotel in Pennsylvania in 1968 or 1969

and in another arson case in Pittsburgh after the fire in

Louisville. Furthermore, he testified that he had “burglar-

ized places.” He testified that he was employed at the time

of the trial as a building contractor in Greensburg, Penn-

sylvania and that he had previously done work in elec-

tronics. During the conference between the court and coun-

sel after the “rap sheet” information was produced, Lave-

rich stated under oath that the population of Greensburg,

Pennsylvania is about 15,000.

Fife relies principally on !ford v, United States, 282

U. S. 687 (1931), and Smith v. Illinois, 390 U. 8. 129 (1968).

Alford establishes the rule that counsel for a defendant is

not required to show, or even know, what he expects to

prove on cross-examination, Cross-examination, particu-

larly where the purpose is to disclose bias or prejudice on

the part of a witness, is necessarily of an exploratory

nature. The Supreme Court held that it was error for a

trial court to sustain ai objection to a cross-examiner’s

question seeking to elicit the aadress of a government wit-

ness in a criminal prosecution. Mr. Justice Stone wrote

for the Court, “Prejudice ensues from a denial of the op-

portunity to place the witness in his proper setting and put

ce i le

25

the weight of his testimony and his credibility to a test,

without which the jury cannot fairly appraise him.” 282

U.S. at 692.

In Smith v. Illinois, 390 U. S. 129 (1968), a government

witness admitted on cross-examination that he had given a

fictitious name on direct examination. The trial court sus-

tained objections to cross-examination questions concerning

his real name and his residence address at the time of the

trial. Pointing out that the identity and residence of a wit-

ness are basic information the Court stated, “The witness’

name and address open countless avenues of in-court ex-

amination and out-of-court investigation. To forbid this

most rudimentary inquiry at the threshold is effectively to

emasculate the right of cross-examination itself.” Jd. at

131, The present case is distinguishable in some respects

from Smith v. Illinois in that the witness gave his true

name, the town where he lived and worked and his oceupa-

tion.

The mere expression of apprehension by a witness who

is reluctant to divulge his address is not sufficient justifica-

tion for restricting cross-examination without further in-

quiry. An im camera hearing might be held to determine

if there is a factual basis for such apprehension. The dis-

trict court should have conducted such an inquiry in the

present case. However, information which was brought

out in the otherwise unrestricted cross-examination of

Laverich revealed that he had lived in a town of approxi-

mately 15,000 population for a period of at least two years

where he was engaged as a self-employed building con-

tractor. Thus the only information the witness was allowed

to withhold was his street address in a relatively small

community.

Though convictions were reversed by the Supreme Court

both in Alford v. United States and Smith v. Illinois, the

Court did not lay down a per se rule that a witness must

26

always be required to give his residence address. In Alford

the Court affirmed that the extent of cross-examination with

respect to any permitted subject is always within the sound

discretion of the trial court. 282 U.S. at 694. We believe

that under the circumstances of this case, counsel for Fife

had the opportunity “to place the witness in his proper

setting. . . .” Id. at 692. As the court pointed out in

United States v. Alston, 460 F. 2d 48, 51 (5th Cir.), cert.

denied, 409 U. S. 871 (1972), the purpose of Alford and

Smith is achieved if sufficient evidence is admitted to

identify the witness and locate him in his usual environ-

ment. The cross-examination which was permitted in the

present case produced this information.

The critical importance of cross-examination in our ad-

versary system of justice has been affirmed many times.

The necessity of permitting great latitude in cross-examina-

tion where the purpose is to show bias or motive of a wit-

ness to testify falsely has been recently reiterated by the

Supreme Court and this court. See Davis v, Alaska, 415

U. S. 308 (1974) ; United States v. Garrett, _. F. 2d

(6th Cir. No. 76-1108, decided September 29, 1976) ; United

States v. Baker, 494 F. 2d 1262 (6th Cir. 1974). However,

an examination of the entire transcript of the testimony of

Laverich reveals an extensive and productive cross-ex-

amination, and we conclude that the district court did not

commit prejudicial error.

Both judgments of conviction are affirmed.

we Ore

ee = Or res ee

et Re ee Ow OO mee ee ee

APPENDIX B

18 U.S.C., 1952

Interstate in foreign travel or transportation in aid of

racketeering enterprises.

A. Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to:

1) distribute the proceeds of any unlawful activity or;

2) commit any crime of violence and to further any un-

lawful activity or;

3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment or

carrying on of any unlawful activity,

and thereafter performs or attempts to perform any of

the acts specified in subparagraphs 1, 2 and 3, shall be fined

not more than $10,000 or imprisoned for not more than five

(5) years, or both.

B. As used in this section, unlawful activity means:

1) any business enterprise involving gambling, liquor

on which the federal excise tax has not been paid, narcotics,

or controlled substances (as defined in Section 102(6) of

the Controlled Substances Act), or prostitution offenses in

violation of the laws of the state in which they are commit-

ted or the United States or;

2) extortion, bribery or arson in violation of the laws

of the state in which committed or of the United States.

C. Investigations of violations under this section in-

volving liquor shall be conducted under the supervision of

the Secretary of the Treasury.

18 U.S.C., 1341

Frauds and Swindles

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fradulent pretenses, repre-

sentations, or promises, or to sell, dispose of, loan, ex-

change, alter, give away, distribute, supply, or furnish or

procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything repre-

sented to be or intimidated or held out to be such counter-

feit or spurious article, for the purpose of executing such

scheme or artifice or attempting so to do, places in any

post office or authorized depository for mail matter, any

matter or thing whatever to be sent or delivered by the

postal service, or takes or receives therefrom, any such

matter or thing or knowingly causes to be delivered by mail

according to the direction thereon, or at the place at which

it is directed to be delivered by the person to whom it is

addressed, any such matter or thing, shall be fined not

more than $1,000 or imprisoned not more than five (5)

years, or both.

18 U.S.C., 371

Conspiracy to Commit Offense or to Defraud United

States.

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more such persons do any act to affect

the object of the conspiracy, each shall be fined not more

than $10,000 or imprisoned not more than five (5) years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.

ee ee es oe =

29

18 U.S.C., 2

Principals.

A. Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commissions, is punishable as a principal.

B. Whoever willfully causes an act to be done which

is directly performed by him or another would be an offense

against the United States, is punishable as a principal.