Petition — Ivler v. United States

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! FER Q 1977

MICHAEL RODAK, J

Supreme Court of the United States

Ocropen Tzrm, 1976

nv. V6h-LIOL

J. GEORGE IVLER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

cE —

ET ____________

Ricnarp Newman,

Counsel for Petitioner,

1180 Raymond Boulevard,

Newark, New Jersey 07102.

Istes, NEWMAN AND WEISSBARD,

Attorneys for Petitioner.

Adams Press Corp., 11 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

SEER ae ae Se REE GRO SD NE

a *

QvuEsTIONS PRESENTED ........... -

CoNSTITUTIONAL AND Statutory Provisions INVOLVED

STATEMENT OF THE CASE .......

I.. Procedural background ....... selene

II. Factual background ..

IiI. The judgment order of the Court of Ap-

peals for the Third Circuit

Reasons FOR GRANTING THE WRIT:

1. This Court’s decisions in Bruton v. United

States and Barber v. Page have not been cor-

rectly applied by the Court of Appeals for

the Third Cireuit when a witness available to

the Government is not produced and the ac-

cused is implicated by the testimony intro-

duced in derogation of the right of con-

frontation guaranteed by the Sixth Amend-

ment

2. The interpretation of Federal Rule of Evi-

dence 609 (b) which limits the use of prior

convictions beyond 10 years old for impeach-

ment purposes is a matter that has not been,

but should be, determined by this Court, par-

ticularly where it is the accused who seeks

to impeach the Government’s witness ..............

CoNncLUSION A

PAGE

mS wo wo

aw w

14

19

li TABLE OF CONTENTS

PAGE

APPENDIX:

A—Judgment Order of the Court of Appeals

kB RE EE la

B—Order Staying Issuance of Mandate of the

United States Court of Appeals for the

Third Circuit a . 5a

Cases Cited

Barber v. Page, 390 U.S. 79 (1968) 2.2.22... 2, 19-21

Bruton v. United States, 391 U.S. 123 (1968)......2, 15, 19-21

Butler v. United States, 408 F. 2d. 1103, 1104-05

(10th Cir. 1969) sini ..L7, 18

Davis v. Alaska, 415 U.S. 308 (1974) ..

Gordon v. United States, 383 F. 2d. 936 (D.C. Cir.

1967) cert. denied 390 U.S. 1029 (1968)... 18

State v. Covington, 113 N.J. Super. 229, 273 A.2d.

402 (App. Div. 1971), affirmed, 59 N.J. 536, 284

Fp. § &§: : | pw maianaiatitis ——

State v. Pollack, 43 N.J. 34, 202 A.2d. 433 (1964) ... 22

Stewart v. Cowan, 528 F.2d. 79, 84 (6th Cir. 1976) ... 21

United States v. Alvarez, 519 F.2d. 1052 (3d Cir.

1975), cert. denied, 423 U.S. 914 (1975) 21

United States v. Blassick, 422 F.2d. 652 (7th Cir.

1969), cert. denied, 402 U.S. 985 (1971) 20. 21

United States v. Hicks, 524 F.2d. 1001 (5th Cir. 1976)

cert. denied 424 U.S. 946 (1976) 22. waitiitiiaies 21

United States v. Jackson, 405 F. Supp. 938, 941, 942

(E.D.N.Y. 1975) .......... ~_ 18

TABLE OF CONTENTS iii

PAGE

United States v. Lipowitz, 407 F.2d. 597, 602-03 (3d

Cir.) cert. denied sub. nom. Smith v. United States,

395 U.S. 946 (1969) . 15, 16

United States ex rel. Nelson v. Follette, 430 F.2d.

1055 (2d Cir. 1970), cert. denied, 401 U.S. 917

(1971) « 21

United States v. Trowery, 542 F.2d. 623, 626 (3d

Cir. 1976) m 15

United States v. Williams, 529 F.2d 559 (8th Cir.

1976) 15

United States Constitution Cited

Fifth Amendment " 12

Sixth Amendment 2, 19, 20, 22

Federal Statutes Cited

18 U.S.C.:

See. 2 4

Sec. 844(h) (1) and (2) 4

Sec. 844(i) and (2) . 4

26 U.S.C.:

Sec. 586 . 4

28 U.S.C. :

See. 1254 (1) ..... 2

iv TABLE OF CONTENTS

PAGE

New Jersey Statutes Cited

N.J.S. 2A:111-15 ............ dmisentel 22

N.J.S. 2A:111-16 .... a 99

Rule Cited

Fed. Rule of Evid.:

609 (b) ieeninasaselia 2, 3, 18, 22

801 (d) (2) (EB) 14, 15

Other Authority Cited

Weinstein’s Evidence (1975) See. 609(03) at 609-71

to 609-74 §

IN THE

Supreme Court of the United States

Ocroper Term, 1976

—~>

J. GEORGE IVLER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the Court of Appeals for the Third

Cireuit entered in the above entitled cause on January 12,

1977.

Opinion Below

The judgment order of the court below directly preced-

ing this petition is that of the Court of Appeals for the

Third Cireuit and is reproduced in the Appendix hereto.

2

Jurisdiction

The judgment of the Court of Appeals for the Third

Cireuit was entered on January 12, 1977. This petition

for writ of certiorari was filed within 30 days of that date.

A stay of the issuance of the mandate until February 11,

1977 was previously granted by the Court of Appeals on

January 26, 1977. This Court’s jurisdiction is invoked

under the authority of 28 U.S.C. §1254(1).

Questions Presented

1. Does the Sixth Amendment and this Court’s decisions

in Bruton v. United States, 391 U.S. 123 (1968) and Bar-

ber v. Page, 390 U.S. 79 (1968) compel the Government

to produce a witness, who is available to the Government

but not called by them, instead of relying on the hearsay

testimony of another witness?

2. Does Fed. Rule of Evid. 609 (b) preclude the cross

examination of the Government’s principal witness about

a prior conviction more more than ten years old without

denying to the accused the right of confrontation secured

by the Sixth Amendment?

Constitutional and Statutory Provisions Involved

This case involves the following portion of the Sixth

Amendment to the United States Constitution:

“Tn all criminal prosecutions, the accused shall en-

joy the right ... to be confronted with the wit-

nesses against him... .”

and

Federal Rule of Evidence 609 (b) which reads:

“(b) Time limit.—Evidence of a conviction under

this rule is not admissible if a period of more than

ten years has elapsed since the date of the convic-

tion or of the release of the witness from the con-

finement imposed for that conviction, whichever is

the later date, unless the court determines, in the

interests of justice, that the probative value of the

conviction supported by specific facts and circum-

stances substantially outweighs its prejudicial ef-

fect. However, evidence of a conviction more than

10 years old as calculated herein, is not admissible

unless the proponent gives to the adverse party

sufficient advance written notice of intent to use

such evidence to provide the adverse party with a

fair opportunity to contest the use of such evi-

dence.”

Statement of the Case

I. Procedural background

The petitioner, J. George Ivler, an attorney of the State

of New Jersey, was indicted along with Robert J. Sorge,

Louis J. Cennimo and Peter A. Crueso in an eight count

indictment in the District of New Jersey on July 24, 1975.

Count one charged all four defendants, along with an un-

indicted coconspirator, Steven Cannold, the Govern-

ment’s principal trial witness against them, with a con-

spiracy to commit mail fraud by the fire bombing of a

Figure-Tone Health Spa owned by Sorge’s corporation in

East Orange, New Jersey and seeking to collect on the

insurance proceeds. The conspiracy was alleged to have

taken place between January, 1971 and May 31, 1971 with

the actual fire bombing occurring at the East Orange lo-

4

cation on February 18, 1971. Count two charged the four

defendants with knowing possession of a firearm, that is,

dynamite, which was not registered to them in the Na-

tional Firearms Registration and Transfer Record in vio-

lation of 26 U.S.C. §586 (d) and 18 U.S.C. §2. Count three,

dismissed by the trial judge at the end of the Govern-

ment’s case, charged the four defendants with damaging

by means of an explosive the Figure-Tone Health Spa,

an activity affecting interestate commerce in violation of

18 U.S.C. §844(i) and 2. Only Ivler and Sorge were

charged in the remaining counts. Counts 4, 5, 6 and 7

were violations of the mail fraud statute and each count

related to a separate insurer who had been on the risk.

Count eight charged Sorge and Ivler with the wilfull and

krowing use of an explosive to commit a felony, that is

mail fraud, prosecutable in a court of the United States

in violation of 18 U.S.C. §844(h) (1) and (2). Ivler en-

tered a plea of not guitly as to all counts of the indictment

on September 12, 1975.

Sorge, Ivler and Cennimo went to trial in the District

of New Jersey before United States District Judge Fred-

erick B. Lacey and a jury on December 15, 1975. The jury

returned guilty verdicts on December 23, 1975 as to Sorge

and Ivler on counts 1, 2, 4, 5, 6, 7 and 8. Cennimo was

acquitted of the conspiracy charge in count one, but was

found guilty of the possession of dynamite charge without

the proper registration contained in count two.

Motions for a judgment of acquittal and for a new trial

were made by Ivler and denied by the trial court on Janu-

ary 26, 1976 following a brief evidentiary hearing. A fur-

ther motion for a new trial as an outgrowth of material

submitted by the Government in opposition to the earlier

new trial motion made by Ivler was denied by the trial

judge on March 8, 1976. Ivler, with Sorge and Cennimo,

was sentenced on March 8, 1976. On count one, the im-

position of sentence was suspended as to Ivler and a pro-

bationary term of three years was imposed. Similarly.

on the second count, the imposition of sentence was sus-

pended and a probationary term of two years was im-

posed with the term to run consecutive with the proba-

tion term on count one. As for counts 4, 5, 6, 7 and 8, a

probation of three years was imposed with the term to

run concurrent with the probation fixed on the first count

of the indictment. Sorge received the same sentence given

to Ivler. Cennimo, convicted on count two, received a sus-

pended sentence and three years’ probation.

On March 11, 1976, Ivler filed an appeal from the whole

of the judgment of conviction entered on March 8, 1976 as

well as the order denying the judgment of acquittal and

a new trial applications An order granting a stay of

the imposition of the probationary term on Ivler was

entered by the court on March 11, 1976 The judgment

of the district court was affirmed on January 12, 1977 by

the Third Circuit in a judgment order entered that day.

II. Factual background

Robert Sorge was the owner of a chain of Figure-Tone

Health Spas located throughout parts of New Jersey.

Fires of unknown origin had oceurred at Figure-Tone

Spas in Bloomfield, in Teaneck and finally in Watchung,

New Jersey in December, 1970 (T. 702, T. 710, T. 713).

(“T” designation refers to the trial transcript which is

included in the record certified to this court by the Clerk

of the Court of Appeals for the Third Circuit). The first

0 spas were not covered by insurance and the third in

Watchung was under an insurance binder when the fire

occurred (T. 65 to T. 66).

Prior to the fire at the Watchung location, Sorge was

approached by Stephen Jee, an insurance broker, who

urged that he insure his properties when he learned that

they were uninsured and fires had taken place (T. 49 to

T. 50). Sorge followed Jee’s advice and sought to have

insurance placed on his spas, including the one located

in East Orange, the subject of the criminal charges in-

volved in this case (T. 50 to T. 51). Ivler had nothing

to do with the obtaining of the insurance and Mr. Jee so

testified at the trial acknowledging that he did not even

know Ivler (T. 87).

While the fires which struck at the Figure-Tone opera-

tion during the last quarter of 1970, were of unknown

origin, several explanations for these fires were consid-

ered. One explanation centered on a competitor, Euro-

pean Health Spa, but there was no proof of any involve-

ment on their part. Another possible suspect was Steven

Cannold who had worked for Bond and Credit Company,

the collection arm of Figure-Tone Health Spa, but was

fired in the fall of 1970 when it was leayned that he had

used strong arm methods in making collections of settle-

ment accounts (T. 912 to T. 913). Cannold also had made

demands for money on ‘orge to which Sorge did not re-

spond (T. 707, T. 757, T. 893 to T. 894).

Cannold, who had a criminal record, knew and had been

represented by Anthony F. La Duca, Ivler’s law partner

and, indeed, had met Ivler through his relationship with

La Duca (T. 970 to T. 971). The firm of Ivler and La

Duca did collection work for Figure-Tone when contracts

that could not be collected upon and justified the cost

of litigation were put into suit (T. 974; T. 1006).

The fire bombing that struck the Figure-Tone Spa in

East Orange happened on February 18, 1971. At the time,

four insurance companies were on the risk. Following the

fire on February 26, 1971, Sorge retained, on Jee’s rec-

ommendation, Sapperstein, Hochberg & Liaberman, a firm

of insurance adjusters, to represent |igure-Tone’s inter-

est on the fire loss (T. 67, 136 to 138; T. 157). Loss no-

tices were mailed to the four carriers on March 1, 1971

(T. 145; T. 146). On May 2nd, 1971, Sidnev Levine of

Sapperstein, Hochberg & Haberman visited ‘ie Figure-

Tone site in East Orange and estimated the value of the

loss to be $5,000.00 to $5,500.00 (T. 147; T. 151) Manuel

Alvarez, a self-employed insurance adjuster retained by

three of the insurance companies, also viewed the site on

May 2nd (T. 147). His estimate of the value ef the loss

was $4,135.00 (T. 178). Ivler had nothing to do with re-

taining the insurance adjusters, nor did he take part in

the processing or evaluation of the loss (T. 163).

To implicate Ivler in the Government’s ca-c, reliance

was very heavily, if not exclusively, placed upon the tes-

timony of Steven Cannold, the unindicted coconspirator.

Cannold, who first testified before the grand jury on Au-

gust 9, 1973, almost two years before the indictment was

returned and more than two and one-half years after the

event itself, was, indeed, the key and principal trial wit-

ness.

Cannold testified that he met with Anthony La Duca,

Ivler’s law partner, at a time in January, 1971 when

Ivler asked to speak to him (T. 184). Still at the law

offices of Ivler and La Duca, Cannold said he met with

Robert Sorge and Ivler (T. 185). Ivler, according to

Cannold, explained that Sorge, the owner of a chain of

health spas known as Figure-Tone, wanted his health spas

bombed or destroyed for insurance purposes (T. 185).

After some bargaining over the price, Cannold agreed

to do three spas for a total price of $7,500.00 (T. 186).

Ivler was to hold the money until the job was completed

(T. 186). Gannold indicated that he could not handle the

8

jobs himself, but would contact someone else who could

(T. 186).

Subsequently, Cannold contacted Peter Cruseco who had

experience with explosive devices and discussed the

method of fire bombing the health spa premises (T. 190).

A few days later, as Cannold testified, another meeting

was held at Ivler’s law office to review the understanding

among himself, Sorge, Ivler and Crusco and the $7,500.00

was agreed upon as a firm figure (T. 192). The meeting

continued at the Cabana Club, a bar next door to the

building in which the law offices were located at 26 Ham-

ilton Street, Paterson, New Jersey (T. 192).

Cannold testified that, a few days thereafter, another

meeting took place at the Jailhouse Lounge in Paterson

with the majority of conversation between Sorge and

Crusco, Ivler not staying very long on that occasion (T.

193 to A. 194). Cannold further stated that he had dis-

cussed Ivler’s holding of the $7,500.00 and of even ac-

companying Ivler to the bank down and across the street

from his law office to put the $7,500.00 in a safe deposit

box for safekeeping (T. 195 to T. 196). Following this,

Cannold saw Cruseo and confirmed that lvler had the

money (T. 196). Crusco, rather than try to do the job

by himself, suggested that Lou Cennimo go with him and

Cannold had no objection (T. 196 to T. 197).

While Cannold did not go to the spa on the evening it

was bombed, he waited for Crusco at Crusco’s house (T.

198). Returning with two pizza pies, Crusco, along with

Cennimo, indicated that the job had been done, according

to Cannold’s testimony, and they had waited at a nearby

pizza parlor until the explosion had taken place (T. 199).

The following day Cannold went to see Ivler at his law

office for payment (T. 200). Supposedly, Ivler took out

9

$3,500.00 for a 1970 Cadillac Eldorado that Cannold had

purchased from him, plus $1,000.00 as a charge for hold-

ing the money (T. 200). Of the $7,500.00 agreed upon,

$3,000.00 was paid to Cannold even though only one spa

“had gone up” instead of the agreed upon three (T. 200).

As for the 1970 Eldorado, neither Cannold’s nor Ivler’s

name appeared in the chain of title although Ivler held

a lien on the car when title was in the name of one John

Marshall (T. 203). According to Cannold, he kept none

of the $3,000.00, but gave it all to Crusco who, in turn,

said he would give half to Cennimo (T’. 203).

Cross examination of Cannold showed him to have been

convicted of two counts of counterfeiting in February,

1973 where he received a consecutive three and two year

federal custodial sentence (T. 210 to T. 211). Cannold

also admitted to being convicted of state charges involving

a concealed weapon, conspiracy and robbery in June, 1973

for which he received a suspended 11% to 2 year sentence

(T. 183). His aggregate five year counterfeiting sentence

was reduced to three years in June, 1973 (T. 211). Both

his sentence reduction and suspended term occurred prior

to his actual grand jury appearance relating to this mat-

ter in August, 1973 (T. 358). He admitted, however, that

he began cooperating with federal agents while he was at

Danbury and following his initial incarceration at the

West Street Detention Center beginning in February, 1973

(T. 353 to T. 355). A worthless check conviction in 1962

more than 10 years old at the time of trial, was a subject,

that the defense was not permitted to pursue on cross

examination, the court sustaining the Government’s objec-

tion (T. 216 to T. 217). The apparent rationale of the

court below was that there was enough ammunition as to

other convictions so that the jury will be able to savor the

flavor of Cannold, or as the court put it borrowing from

10

the classical expression: “Enough to enable them to make

a discriminating appraisal of him.” (T. 217).

At the same time Cannold was in jail in 1973, his wife

was also incarcerated and while he denied it, episodes of

homosexual behavior by her that he heard about were sug-

gested as a compelling motivation for his willingness to —

cooperate (T. 450 to T. 452). On the other hand, Cannold

said that he refused to cooperate because the federal offi-

cials could not guarantee to secure his wife’s release (T.

359), but that they would see what they could do in try-

ing to get his wife out of jail if he cooperated (T. 360 to

T. 361).

Cannold denied that he knew he would not be indicted

if he testified before the grand jury and was aware of

the fact that he was an unindicted coconspirator (T. 361

to T. 362). He admitted, however, that he was advised

by the attorney questioning him in August, 1973 that in

all probability, the grand jury would not indict him (T.

363). Following his testimony before the grand jury, he

returned to Danbury briefly and was then transferred to

another location (T. 356 to T. 357). During this time, he

received for a year on a regular basis beginning in Febru-

ary or March, 1973 subsistence checks from the Govern-

ment (T. 336).

Cannold, faced with a five year federal jail sentence,

the prospect of additional time from the State for unre-

lated offenses and the anxiety over his wife’s confinement

and what was happening to her, was a ripe subject for

cooperation. A tape recording of a phone conversation

that Cannold had with Peter Crusco in June, 1974 which

the Govenment turned over within the week prior to trial

as Brady material showed just how vulnerable Cannold

11

was in retrospect (T. 209, T. 261). Indeed, Cannold was

not above perjuring himself given the pressure he was un-

der when he began cooperating with the Government in

early, 1973 (T. 302 to T. 335). He admitted, for example,

that it was possible that he changed his version of things

to the Justice Department (T. 309). He did not recall

that he might have said in his conversation with Crusco

that if two people swear to the same lie there is corrobo-

ration (T. 318 to T. 322).

No other testimony corroborated Cannold except to the

extent that Charles A. D’Arrigo was permitted to testify

(T. 549 to T. 568). Prior to D’Arrigo testifying as to his

conversations with Cruseo, a named defendant who was

not on trial, and about his own involvement in arranging

a sale of dynamite from Crusco to a special agent

(Forbes), there was an extended argument over the ad-

missibility of these conversations and the subsequent sale

of dynamite to Forbes (T. 549 to T. 568). In spite of the

fact that Crusco’s statements that he was owed a debt by

Cannold and Crusco’s admission that he dynamite bombed

the Figure-Tone Spa in East Orange were not in further-

ance of the conspiracy, the court, nonetheless, permitted

them insofar as they went to the issue of Crusco’s parti-

cipation in any wrongdoing and were not binding on any

of the defendants on trial (T. 560). The trial court pro-

vided such a limiting instruction (T. 571 to T. 572).

1 Unfortunately, the real impact of this tape was never felt by the

jury because counsel cross examined Cannold on the basis of a

transcript of the tape which itself was continually interrupted by

side bar conferences (See T. 302 to T. 335). Many questions were

finessed by Cannol:: in his answers when he responded that he did not

recall his exact words and counsel did not have the tape played

to see if it refreshed Cannold’s recollection as to what he said.

12

Counsel for Ivler pointed out that Cruseo had pleaded

guilty to the conspiracy count and would, therefore, not

have a Fifth Amendment privilege available to him if he

were called to testify by the Government (T. 564). What

the objection amounted to was that the Government could

not choose to circumvent the right of confrontation by

calling D’Arrigo instead of Crusco, nor could the court

make up for the constitutional deficiency by a limiting in-

struction. (See T. 558 to T. 564). Asking the jury to limit

the testimony in the light of how it impacted upon what

was charged against Crusco when he was not even on trial

made no sense.

D’Arrigo, who had a prior criminal record, then testified

as to conversations that he purportedly had with Peter

Crusco, the bomber who was recruited by Cannold. These

conversations, not in furtherance of the conspiracy, re-

lated to Crusco admitting to the use of explosive devices

before (T. 569), that he would use explosives for an arson

of a building supported by steel girders such as the East

Orange spa (T’. 569), and that he had access to dynamite

(T. 569). Cruseo also indicated to D’Arrigo that Cannold

owed him $2,000.00 for committing a bombing at the

Figure-Tone Health Spa in East Orange in 1971 (T. 570).

The court instructed the jury that Crusco’s statements

testified to by D’Arrigo were not binding on any of the

defendants, but they should be evaluated only on how it

impacts upon what is charged against Crusco who was

not even on trial (T. 571 to T. 572).

D’Arrigo had arranged for a sale of dynamite by Crusco

to one Joe Ford who was operating in an undercover

capacity for the Government and whose real name was

Joseph Forbes, a Special Agent (T. 572). On May 10,

1971, six sticks of dynamite at 60% strength were sold by

Cruseo to Ford (T. 573 to T. 576) Forbes also testified,

13

identifying Crusco from a photograph, as the person from

whom he bought the dynamite which was admitted into

evidence (T. 579 to. T581). The jury was, likewise, ad-

vised by the court that an instruction similar to the one

given on D’Arrigo’s testimony would be applicable (T.

582).

Of the defendants, only Ivler testified. He denied hav-

ing any conversation or conferences with Cannold; he

denied having any conference with Cannold and Sorge

at anytime during 1971 (T. 972) to T. 973). He denied

meeting with Cannold at the Cabana Ciub (T. 977), and

this testimony was corroborated by Eugene Dorobkowski,

the owner of the Club who testified that he did not see

Ivler and Cannold in the Club, in early 1971 (T. 805).

In fact, Dorobkowski had prohibited Cannold from com-

ing into the Club in late 1970 when Cannold and a friend

had damaged the bar upholstery in the club (T. 802 to

T. 803). Ivler denied paying any money to Cannold; he

did not maintain a safe deposit box at the New Jersey

Bank that Cannold had described going to in his testi-

mony (T. 1029 to T. 1030). A spokesman for the bank

confirmed that no safe deposit box was maintained under

Ivler’s name or the law firm’s name for the years 1970

and 1971 (T. 885). As for the sale of 1970 Cadillae Eldor-

ado, Ivler acknowledged that he owned the automobile

briefly, having purchased it from an out of state owner;

however, the automobile was in a serious accident within a

few days after he bought it and before he would have put

title in his name. Rather than incur the headaches of

repairing it, he transferred it to Guy’s Auto who were

willing to make the repairs and had a potential buyer

(T. 1009 to T. 1017). Until this was done, Ivler held a

lien interest against the automobile which was paid off

on February 1, 1971 according to the certificate of the

Division of Motor Vehicles, State of New Jersey (T.

14

1012 to T. 1013, Ex. G-39). Ivler denied selling the car

to Cannold (T. 1009).

Other witnesses for the defense, Roland Sorge, the de-

fendant’s brother and Bruce Grasing and Jerrice Walton,

Figure-Tone employees documented that Cannold had de-

manded money from Sorge—as much as $10,000.00 on one

occasion and $7,000.00 on another (T. 707, T. 757, T. 893

to T. 894). Unless the money was paid, both Sorge and

his brother’s families, according to Ronald Sorge’s tes-

timony, would suffer and they would never forget Can-

nold’s name (T. 708).

III. The judgment order of the Court of Appeals for the

While it may be difficult to divine the rationale of the

court below when it renders a judgment order, this par-

ticular order contained citations of authority in footnotes

for the rejection by the court of the contentions raised

by the petitioner. In rejecting the contention that:

“(1) notwithstanding limiting instructions, the

court erroneously allowed testimony which was ad-

mitted in derogation of the Sixth Amendment right

of confrontation, as enunciated in Bruton v. United

States, 391 U.S. 123 (1968)... .” (App. 2a).

the Court of Appeals appeared to rely on two lines of

authority in approving of the admissibility of Crusco’s

statements which were made to D’Arrigo and testified to

by D’Arrigo even though Crusco was available to the Gov-

ernment as a witness. The first apparent basis for sus-

taining admissibility is bottomed on the coconspirator

exception to the hearsay rule which is borne out by the

following citations: Fed. R. Evid. 801(d)(2)(E), Wig-

15

more on Evidence §1079; United States v. Trowery, 542

F. 2d 623, 626 (3d Cir. 1976) and United States v. Wil-

liams, 529 F. 2d 559 (Sth Cir. 1976) (App. 2a). Unfor-

tunately, reliance on this line of authority was clearly

misplaced by the Court of Appeals. Before a statement

may be admissible against a coconspirator it must be

found to have been made during the course of and in

furtherance of the conspiracy. The trial judge in ad-

mitting the testimony found that the statements were not

made in furtherance of the conspiracy (T. 555-17 to T.

560-12). He factually rejected that theory of admissi-

bility and his so called limiting instructions to the jury

reenforced this rejection because the instruction would

not have been necessary had the statements been admitted

under the coconspirator exception to the hearsay rule

under Fed. Rule of Evid. 801(d)(2)(E).

The second basis for admissibility is found under the

rationale of United States v. Lipowitz, 407 F.2d 597,

602-03 (3d Cir.), cert. denied sub. nom. Smith v. United

States, 395 U.S. 946 (1969). There, the court ruled that

no Bruton violation existed where a co-defendant’s name

was never mentioned in the confession put into evidence.

Apparently the trial judge was opting for this kind of

rationale when he admitted the Crusco statements made

to D’Arrigo at trial, insuring thet the names of the de-

fendants on trial were not specifically mentioned. While

such an effort to comport with the Lipowitz line of cases

may be viewed as commendable, the absence of an express

mention of a co-defendant’s name does not ipso facto

mean that Bruton has not been violated. The test is one

of inculpation and not a mechanical test of identification

by name alone. The circumstances surrounding the ad-

mission of Crusco’s statement through the w.iness D’Ar-

rigo, interlocked the principals in the conspiracy that the

Government charged and knotted them together just as

16

they were grouped in the indictment caption itself which

went into the grand jury room during deliberations. Ac-

cording to the Government, Sorge wanted to collect the

insurance proceeds on the fire bombings of his Figure-

Tone Spa, and Ivler was to hold the money for Cannold

who, in turn, recruited Cruseco to do the bombing. Crusco,

in addition to bolstering the credibility of Cannold, be-

eame the key to tie the links in the conspiracy chain

together, inculpating all of the coconspirators at the same

time. He should have been produced as the Government’s

witness; there was no adequate substitute if the peti-

tioner’s right of confrontation was to be secured.

To the extent that Lipowitz, supra, at 603, fn. 19 and 20,

may also be read as a “harmless error” decision on this

point, that kind of backstop would be unpersuasive here.

In Lipowitz, there was overwhelming evidence that the

Ivy Hill Branch of the United States Savings Bank at

Newark was robbed on March 28, 1967 and that three

men participated in tle robbery. For example, marked

or “bait bills,” taken from the bank, were found on Smith,

the appellant in the Lipowite ease. United States v. Lip-

owitz, supra, at 598 to 603. Shorn of the testimony from

D’Arrigo which introduced Crusco’s statements, the Gov-

ernment’s case turned on the testimony of Cannold, hardly

someone to whom we could affix the same label of “over-

whelming evidence”. For that very reason, the conspiracy

theme was played and replayed by the Government at-

torney in his summation and rebuttal remarks (T. 22.2-

3 to 4; T. 22.4-14 to 17; T. 22.5-3 to 8; T. 22.6-24 to 7-5;

T. 22-9 through 11-1; T. 22.12-20 to 23; T. 22.14-2 to 6, 11

to 14; T. 22.18-4 to 9; T. 22.20-4 to 7; T. 22.25-13 to 20;

T. 22.40-15 to 19; T. 22.41-21 to 42-5; T. 2248-12 to 20.

“T, 22” refers to the trial transcript of December 22,

1975 followed by the page and line numbers). The em-

phasis in summation alone demonstrates how essential the

ee —s

17

Crusco statements to D’Arrigo were in the Government’s

proofs.

Furthermore, an explanation for Cannold’s truthfulness

was said to lie in Crusco’s admission to D’Arrigo that

Crusco was the bomber (T. 22.40-10 to 41-3) and that Can-

nold could have stopped with implicating Crusco unless

what Cannold said about the others, Sorge Ivler and Cen-

nimo, was also true (T. 22.41-21 to 42-21). Clearly, the

fact that Cannold’s testimony was said to be corroborated

in part by what Crusco said to D’Arrigo was used to bol-

ster the whole of his testimony. Crusco’s statements to

D’Arrigo, therefore, served a dual purpose: one, they

tied the conspiracy together; and (2) they bolstered Can-

nold’s credibility. Harmless error, if the Court of Ap-

pears did in fact so view the situation, would have to

contain an elasticity it does not possess for it to be bent

to the facts of this case.

In rejecting the petitioner’s second contention that:

“(2) the district court erred in precluding the de-

fense from cross examining the Government’s prin-

cipal witness about a prior conviction more than 10

years old... .” (App. 2a).

the Court of Appeals evidently relied upon Fed.R. Evid.

609(b) and Butler v. United States, 408 F. 2d 1103, 1104-

05 (10th Cir. 1969). Neither authority referred to dealt

with the constitutional implications of denying to an ac-

cused the right to confront the witness against him. In

Butler v. United States, swpra, at 1105, an opinion which

predated the statutory authority controlling in the case

at bar, the Tenth Circuit reasoned that the witness’s

credibility was impeached inasmuch as he admitted to

having committed three felonies and it was not reversible

18

error for the court to refuse further inquiry and develop-

ment of extrinsic evidence into misdemeanor convictions.

The confrontation thrust of an accused’s right of cross

examination argued to the Third Cireuit here and enunci-

ated by this Court in Davis vy. Alaska, 415 U.S. 308 (1974)

was nowhere mentioned or alluded to in the Butler deci-

sion. In citing Butler, the court below has never even come

to grips with the issue raised here.

The statutory rule of 609 (b) adds no further support

for the court’s rejection of the error complained of in not

allowing the accused to cross examine the principal wit-

ness against him on a conviction more than 10 years old.

Of paramount significance as to whether the 10 year limi-

tation should be relaxed is the notion that by adhering to

the limit, an accused who has a stale conviction will be en-

couraged to take the stand. See, United States v. Jackson,

405 F. Supp. 938, 941, 942 (E.D.N.Y. 1975). Here, the

reason for the relaxation of the 10 year limitation had

absolutely nothing to do with encouraging the accused to

take the stand for the limitation was directed at a Govern-

ment witness. 3 Weinstein and Berger, Weinstein’s Evi-

dence (1975) §609[03] at 609-71 to 609-74; see also, Gor-

don v. United States, 383 F. 2d 936 (D.C. Cir. 1967), cert.

denied 390 U.S. 1029 (1968). Since one of the principal

objectives of the limitation could not be fulfilled when the

limitation was not keyed to permitting the accused to

make an unfettered decision as to assume the witness

stand or not, there was virtually no reason why the rule

should not have been relaxed.

19

REASONS FOR GRANTING THE WRIT

1. This Court’s decisions in Bruton v. United States

and Barber v. Page have not been correctly applied

by the Court of Appeals for the Third Circuit when

a witness available to the Government is not produced

and the accused is implicated by the testimony intro-

duced in derogation of the right of confrontation

guaranteed by the Sixth Amendment.

It is recognized that the fact harmful error may have

been committed in this case may still not lead this Court

to exercise its discretionary power to review the judg-

ment below. Although the petitioner here is an attorney

and, aside from the stigma of conviction, stands to lose

the very means by which he earns his livelihood, the con-

siderations that motivate this Court to grant certiorari

must necessarily be of boarder dimentions and national

concern rather than limited to right a wrong in an indi-

vidual case no matter how unjust or unfair the result.

The petitioner’s conviction rests on the testimony of

Steven Cannold. There are others like Cannold, who, as

cooperating witnesses, are subsidized, as here, by the

Government and are paraded in and out of our court-

rooms testifying on behalf of the United States of

America. How many innocents have been caught in the

net cast by the testimony of these paid Government wit-

nesses will, most likely, never come to the surface.

On the other hand, law enforcement rationalizes their

use as a dirty tool to fight a dirty business. Some crimes, |

they would argue, could, like this one, only be solved by

the cooperation of the so-called “insider” or accomplice.

But the very acknowledgment that the Government wit-

ness is tainted should work to construct more safeguards

20

for the accused rather than less. This recognition should

become the starting point, not the terminus, for the pro-

tection of the accused.

That the cooperating, subsidized Government witness

with jail time weighing heavily on his back represents a

prime candidate for perjury is an ever present danger that

cannot be seriously disputed, nor can it be casually re-

garded. To the extent that the United States Constitution

can provide a check on this real and continuing danger, it

should. And it is the confrontation clause embodied in

the Sixth Amendment which can serve the purpose of this

bulwark. The decisions of this Court in Bruton v. United

States, 391 U.S. 123 (1968) and Barber v. Page, 390 U.S.

719 (1968) have indicated as much.

In Barber v. Page, the testimony found to violate the

confrontation rights of the defendant was prior sworn

testimony. The sworn testimony in Page was held im-

properly admitted because the witness could not be said

to be unavailable without a demonstration that the State

had attempted to produce him. By contrast here, the testi-

mony is pure hearsay. Crusco was in the custody of the

Attorney General and the Government could, therefore,

very easily have produced him, but for its own reasons

chose not to do so (Petitioner’s Appendix 20a to 21a sub-

mitted in Court of Appeals). This was a classic violation

of the petitioner’s right to confront the Government’s evi-

dence.

Similarly, in Bruton yv. United States, supra, this Court

held that a defendant is denied his Sixth Amendment right

to confrontation when the incriminating confession of a

co-defendant is introduced, unless the accused is afforded

an opportunity for cross examination of his co-defendant.

Although the co-defendant whose statement was admitted

into evidence through the witness, D’Arrigo, did not spe-

21

cifically mention the other defendants by name, the thrust

of his testimony definitely chained them together through

what he had to say about Cannold. °

This case presents the unique opportunity for the Court

to consider the inroads made by the various Federal Court

of Appeals rulings that have found no Bruton violation

where confessions and statements of a co-defendant have

been introduced at trial with the redaction of all refer-

ences to the defendants on trial and to assess the realistic

viability of the redaction process in a concrete setting.

See e.g. United States v. Blassick, 422 F. 2d 662 (7th Cir.

1969), cert. denied, 402 U.S. 985 (1971); United States ex

rel, Nelson v. Follette, 430 F. 2d 1055 (2d Cir. 1970), cert.

denied, 401 U.S. 917 (1971); United States vy. Alvarez,

519 F. 2d 1052 (3d Cir. 1975), cert. denied, 423 U.S. 914

(1975); United States v. Hicks, 524 F. 2d 1001 (5th Cir.

1976) cert. denied, 424 U.S. 946 (1976). Additionally, the

spectre of Barber v. Page hangs heavily over this case

when the co-defendant has pleaded guilty, is not on trial

when the statement is introduced, and the Government has

made no showing as to his unavailability as a witness by

reason of the fact that he was in custody of the Attorney

General. Before the Government can seek to introduce

less reliable accounts of a co-defendant’s statements in a |

criminal trial, the burden of showing the witness’ un-

availability should be met. See, e.g. Stewart v. Cowan, 528

F. 2d 79, 84 (6th Cir. 1976). If the obligation to produce

the witness can be constitutionally sidestepped by the

Government, as it was here, then Barber v. Page has been

dealt a lethal blow.

The trail blazed by Bruton v. United States and Barber

v. Page should not be subject to detour. The continuing

viability of these decisions is of the highest priority if

the right of confrontation is to be made secure and the

22

most reliable testimony is presented and tested by the

rigors of cross examination in our courtrooms. Certiorari

should be granted to consider the issue presented.

2. The interpretation of Federal Rule of Evidence

609(b) which limits the use of prior convictions be-

yond 10 years old for impeachment purposes is a

matter that has not been, but should be, determined

by this Court, particularly where it is the accused who

seeks to impeach the Government’s witness.

This Court in Davis v. Alaska, 415 U.S. 308 (1974) re-

affirmed the principle that the accused’s right of cross

examination is included in the “right of confrontation”

guaranteed by the Sixth Amendment. This constitutional

concern interposes itself whenever an accused seeks to

examine a Government witness about a prior conviction

and runs directly into the 10 year limitation embodied in

Fed. R. Evid. 609(b). The issue has not been considered

by this Court. For that matter, this Court has not availed

itself of the opportunity to address Fed. R. Evid. 609(b),

leaving constitutional considerations to one side.

The facts of this case bring the issue into sharp relief.

The Government witness sought to be examined about the

worthless check charge, a crime of dishonesty, was the

central figure in the Government’s proofs.? His believ-

2Cannold pled guilty in the State court in 1962 to uttering a

worthless check in violation of N.J.S. 2A:111-15. The offense re-

quires an intent to defraud for a conviction. State v. Covington,

113 N.J. Super. 229, 273 A.2d. 402 (App. Div. 1971), affirmed,

59 N.J. 536, 284 A.2d. 532 (1971). Where it is established that

there were no funds or insufficient funds in the account at the time

the person made or delivered the check, a presumption of an intent

to defraud comes into play under NJ.S. 2A:111-16, but that does not

reduce the burden of the prosecution to prove an intent to defraud

not does it change the essential dishonest nature of the act. Stave v.

Pollack, 43 N.J. 34, 202 A.2d. 433 (1964).

23

ability was absolutely crucial and anything that would

further undermine his truthfulness was essential to the

defense. To be sure, the witness, Cannold, did have other

prior convictions about which he was questioned, but that

should not have militated against examining him about

an earlier conviction. On the contrary, it provides an

even stronger reason for asking him because it shows his

prior untrustworthiness.

As the final arbiter of the evidence rules, the guidelines

provided by this Court could be of immeasurable help to

the lower federal courts who have to apply this rule on a

continuing and daily basis.

CONCLUSION

For the reasons herein, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

Ricuarp NewMAan

Counsel for Petitioner

1180 Raymond Boulevard, Suite 2045

Newark, New Jersey, 07102

Istes, NEWMAN AND WEISSBARD

Attorneys for Petitioner

[ApPenDicEs FoLLow]

APPENDIX A

Judgment Order of the United States Court of Appeals

for the Third Circuit

Unitep Srates Court or APPEALS

For tHe Tuirp Circuit

Nos. 76-1399 & 76-1400

—_>

Unitep Srates or AMERICA,

v.

Rosert Sorce, J. Georce Ivier, Louis J. Cennrmo,

Peter A. Crusco,

J. George Ivler, Appellant in No. 76-1399.

Louis J. Cennimo, Appellant in No. 76-1400.

(D. C. Crim. No. 75-349)

APPEAL FROM THE Unitep States District Court

FOR THE District oF NEW JERSEY

—_~»>

[1a]

2a

Appendia A

Submitted under 3rd Cir. Rule 12(6) January 7, 1977

Before Van Dusen and Apams, Circuit Judges,

and Werner, District Judge*

Richard Newman, Esq.,

Newark, New Jersey,

Attorney for Appellant Ivler

Roger A. Lowenstein, Esq., Federal Public

Defender, Newark, New Jersey,

Attorney for Appellant Cennimo

Jonathan L. Goldstein, U. S. Attorney;

John J. Barry, Assistant U. S. Attorney;

James A. Plaisted, Assistant U. S.

Attorney;

Newark, New Jersey,

Attorneys for Appellee

After considering the contentions raised by appellants,

to wit, that:

(1) notwithstanding limiting instructions, the

court erroneously allowed testimony which was ad-

mitted in derogation of the Sixth Amendment right

of confrontation, as enunciated in Bruton v. United

States, 391 U. S. 123 (1968) ;?

* Honorable Charles R. Weiner, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

1 Fed. R. Evid. 801(d)(2)(E); Wigmore on Evidence § 1079;

United States v. Trowery, 542 F. 2d 623, 626 (3d Cir. 1976);

United States v. Lipowitz, 407 F. 2d 597, 602-03 (3d Cir.), cert.

denied sub. nom. Smith v. United States, 395 U. S. 946 |(1969) ;

United States v. Williams, 529 F. 2d 559 (8th Cir. 1976).

3a

Appendia A

’

(2) the district court erred in precluding the

defense from cross-examining the Government’s

principal witness about a prior conviction more

than 10 years old;?

(3) the defense motion for a mistrial based on

the clearly improper questioning by the Govern-

ment attorney should have been granted; the court’s

instruction could not erase the prejudice ;*

(4) a new trial should be granted in view of the

Government’s failure to file affidavits, as directed

by the trial judge, supporting the in-court repre-

sentation as to the absence of any other material

as to the witness D’Arrigo beyond what was turned

over at the time of trial;* and

(5) the evidence was insufficient to prove that

Ivler aided and abetted on any of the substantive

counts, and the motion for judgment of acquittal

as to these counts should have been granted ;°

it is

2 Fed. R. Evid. 609(b); Butler v. United States, 408 F. 2d 1103,

1104-05 (10th Cir. 1969).

3 United States ex rel. Perry v. Mulligan, No. 75-2332 (3d Cir.,

Nov. 5, 1976), at 11.

4 United States v. Kahaner, 317 F. 2d 459, 473 (2d Cir.), cert.

denied sub. nom., United States v. Corallo, 375 U. S. 836 (1963) ;

Rosenberg v. United States, 360 U. S. 367 (1959).

5 Glasser v United States, 315 U. S. 60, 80 (1942) ; United States

v. DeCavalcante, 440 F. 2d 1264, 1273 (3d Cir. 1973).

4a

Appendix A

ADJUDGED AND ORDERED that the judgment of the district

court be and is hereby affirmed

By the Court:

Van Dusen

Circuit Judge

Attest:

THomas P. Quinn

Clerk

Dated: January 12, 1977

5a

APPENDIX B

Order Staying Issuance of Mandate of the United States

Court of Appeals for the Third Circuit

Unirep States Court or APPEALS

For tHe Turrp Circuit

No. 76-1399

——

Unitep States or AMERICA,

vs.

Rosert Sorce, J. Georce Ivier, Louis J. Cennrmo

and Prerer A. Crusco,

J Georce Iver,

Appellant.

Pursuant to Rule 41(b) of the Federal Rules of Ap-

pellate Procedure, it is orpeRep that issuance of the certi-

fied judgment in lieu of formal mandate in the above

cause be, and it is hereby stayed until February 11, 1977.

Frances L. Van Dusen

Cireuit Judge

Dated: January 26, 1977