Opposition — Peabody v. United States

Nos. 76-1776, 76-6907, and 76-6926

OCTOBER TERM, 1977

ROOSEVELT PEABODY, PETITIONER

Vv.

UNITED STATES OF AMERICA

RAYMOND CASON, PETITIONER

Vv.

UNITED STATES OF AMERICA

HARRY THARP, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

~

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCrez, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

PAUL J. BRYSH,

Attorneys,

Department of Justice;

Washington, D.C. 20530.

LT EL AE EET a a IS I eT OC I I AEC TI

ee ee eed

Page

Opinion below - : ae 2

Jurisdiction 2

Questions presented >> 2

Statement _.__. 3

Argument _._______. 6

Conclusion 18

CITATIONS

Cases:

Bradford v. United States, 413 F.2d 467_ 9

Brulay v. United States, 383 F.2d 345,

certiorari denied, 389 U.S. 986 )

Culp v. United States, 131 F.2d 93 _____ ania 9

Napolitano v. United States, 340 F.2d

eR A a Ren ST 8,9

Schaffer v. United States, 362 U.S. 511 __ 12

United States v. Adamo, 534 F.2d 31, cer-

tiorari denied sub nom. Kearney v.

United States, 429 U.S. 841 8,9

United States v. Allstate Mortgage Corp.,

507 F.2d 492, certiorari denied, 421

U.S. 999 __.. oa 12

United States v. Armone, 363 F.2d 385,

certiorari denied, 385 U.'S.957.....-s— ss 88, 9

United States v. Bishop, 492 F.2d 1361,

certiorari denied, 419 U.S. 833 _..___ 17

United States v. Burket, 480 F.2d 568 __ 17

United States v. Buschman, 527 F.2d

a a 16

United States v. Cassell, 452 F.2d 533___ 9

Cases—Continued Page

United States v. Clay, 495 F.2d 700, cer-

tiorari denied, 419 U.S. 937 = 8

United States v. Cruz, 5386 F.2d 1264 ___. 12

United States v. Davis, 533 F.2d 921 __ - 9

United States v. Echeles, 352 F.2d 892 _. 13

United States v. Fassoulis, 445 F.2d 13,

certiorari denied, 404 U.S. 858 9

United States v. Finkelstein, 526 F.2d 517,

certiorari denied sub nom. Scardino v.

United States, 425 U.S. 960 A 12

United States v. Kahn, 381 F.2d 824, cer-

tiorari denied, 389 U.S. 1015 11,12

United States v. Moeller, 402 F.Supp. 49_ 11

United States v. Negro, 164 F.2d 168 ___. 9

United States v. Parness, 503 F.2d 430,

certiorari denied, 419 U.S. 1105 _ 11

United States v. Quesada, 512 F.2d 1043,

certiorari denied, 423 U.S. 946 8

United States v. Shuford, 454 F.2d 772 _.. 12,13

United States v. Snow, 521 F.2d 730, cer-

tiorari denied, 423 U.S. 1090 _... 14

United States v. Snyder, 505 F.2d 595,

certiorari denied, 420 U.S. 993 _...._ 14

United States v. Williams, 474 F.2d 1047. 8-9

Worthington v. United States, 1 F.2d 154,

certiorari denied, 266 U.S. 626... 9

Statutes and rule:

Tit '.8 ine 3

18 U.S.C. 1623 _...__ 4

18 U.S.C. 1951 _. al 4,7,10,11

18 U.S.C. 1961-1963 4

18 U.S.C. 1962 _..__. A 11

Fed. R. Evid. 801(d)(2)(D) and (E) _. 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1776

ROOSEVELT PEABODY, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 76-6907

RAYMOND CASON, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 76-6926

HARRY THARP, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. 31-

38)* is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 15, 1977. Petitions for rehearing with sug-

gestions for rehearing en banc were denied on May 13,

1977. The petitions for a writ of certiorari in

Nos. 76-1776 and 76-6907 were filed on June 13, 1977.

The petition in No. 76-6926 was filed on June 14,

1977, and is therefore out of time under Rule 22(2)

of the Rules of this Court. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether there was a fatal variance between the

government’s proof at trial and the counts charging

conspiracy (petitioners Peabody and Tharp) and

racketeering (petitioner Tharp).

2. Whether the district court erred in refusing to

grant the motions of petitioners Peabody and Tharp

for a severance.

3. Whether hearsay statements of petitioner Cason

and co-defendant Johnson were properly admitted into

evidence against petitioner Tharp.

1 All “Pet. App.” designations refer to the Appendix in

No. 76-1776.

4. Whether petitioners Tharp and Cason were de-

prived of a fair trial when a government witness

misidentified petitioner Cason as the person to whom

he delivered a “kickback.”

5. Whether petitioners Tharp and Cason were

prejudiced by the prosecutor’s reference in opening

argument to tape recordings that were never intro-

duced into evidence and by the inadvertent (and

immediately corrected) submission of the recordings

to the jury.

STATEMENT

On October 24, 1974, petitioners and four co-

defendants were indicted in the United States District

Court for the Eastern District of Illinois for various

offenses related to the conduct of the affairs of the

East Saint Louis School Board. Petitioners Peabody

and Tharp were members of the board. Petitioner

Cason was the school district’s purchasing agent.

Charles Merritts was president and Fred Kimbrough

was a member of the board. Leonard Johnson was

the school district’s business manager. Ben Phillips

was also a board member; his trial was severed.

The 21-count indictment charged offenses beginning

in 1972 and continuing throughout most of 1974. Be-

fore trial nine of the counts, charging offenses before

1974, were severed. The counts remaining were

numbers 8 and 11-21. Count 8 charged Merritts and

Johnson with mail fraud, in violation of 18 U.S.C.

1341. Count 11 cha:jrd Merritts, Kimbrough, peti-

tioner Peabody and petitioner Tharp with conspiracy

4

to extort money from a supplier doing business with

the school district, in violation of 18 U.S.C. 1951.

Counts 12, 13, and 17 charged Merritts with sub-

stantive violations of Section 1951. Counts 14, 15,

and 16 charged, respectively, petitioner Cason, John-

son, and Kimbrough with substantive violations of

Section 1951. Counts 18, 19, and 20 charged, respec-

tively, petitioner Cason, Johnson, and Merritts with

perjury before the grand jury investigating the extor-

tion scheme, in violation of 18 U.S.C. 1623. Count 21

charged petitioners and their co-defendants with hav-

ing engaged, in conducting the affairs of the school

board, in acts of extortion and mail fraud amounting

to a pattern of racketeering activity, in violation of 18

U.S.C. 1961-1963.

Following a jury trial, verdicts of guilty were re-

turned on all counts except Count 17 (involving Mer-

ritts). Petitioners Peabody and Tharp were accord-

ingly convicted on Count 11 (conspiracy) and Count

21 (racketeering).? Petitioner Cason was convicted

on Count 14 (a substantive violation of 18 U.S.C.

1951), Count 18 (perjury), and Count 21. Petitioner

Peabody was sentenced to two years’ imprisonment

and a fine of $5,000. Petitioner Tharp was sentenced

two years’ imprisonment and a fine of $5,000 on

Count 11; on Count 21 he was sentenced to three

years’ imprisonment, all of which was suspended in

2 The district court granted petitioner Peabody a new trial

on Count 21 on the ground that there had been a variance

between that count as drawn and the government’s proof at

trial (Pet. App. 28-30).

5

favor of probation, to be served consecutively to the

sentence on Count 11. Petitioner Cason was sentenced

to 18 months’ imprisonment and a $5,000 fine on

Count 14; to 18 months’ imprisonment on Count 18,

to be served concurrently with the sentence on Count

14; and to three years’ imprisonment on Count 21,

all of which was suspended in favor of probation, to

be served consecutively to his other sentences. The

court of appeals affirmed (Pet. App. 31-38).

The evidence at trial showed that in 1974 petition-

ers and their co-defendants were engaged in a scheme

by which they unlawfully obtained money paid by

the school district upon false invoices approved by

petitioners and also “kickbacks” from those doing

business with the school district. In March 1974

Marvin Schwartz, an independent contractor with the

school district, submitted $4,498.48 in false invoices

on instructions from co-defendants Merritts and John-

son. The school district paid the invoices, and on

April 11, 1974, Schwartz returned $4,000 of the

money to Merritts for his reelection campaign (Tr.

886-895). James Kammermeyer, president of World

Wide Industries, Inc., made numerous “kickback”

payments to petitioners and their co-defendants be-

tween March and September 1974 in consideration of

supply contracts with the school district.°

* For example, on April 8 Kammermeyer gave Merritts $500

(Tr. 1376-1877). On April 10 he gave Cason $500 to be

divided equally between Peabody and Tharp (Tr. 1372, 1377-

1878). Kammermeyer also purchased a set of golf clubs in

April that he gave to co-defendant Johnson for delivery to

6

ARGUMENT

1. Kammermeyer’s testimony regarding “kick-

backs” to petitioners and the other board members

included mention of (1) a calculator and a tape re-

corder given to petitioner Peabody; (2) a request by

Peabody for a washer and a dryer; (3) a set of golf

clubs given to Johnson for delivery to petitioner

Tharp; and (4) $500 given to petitioner Cason to

be divided equally between petitioners Peabody and

Tharp (Tr. 1362-1366, 1372, 1377-1378, 1414-1415).

These particular “kickbacks” were not mentioned in

the indictment. Petitioners Peabody (Pet. No. 76-

Tharp (Tr. 1414-1415). In early May, at a meeting attended

by Kammermeyer, co-defendant Kimbrough, and petitioners

Tharp and Peabody, “kickback” percentages were discussed

and Kammermeyer gave Peabody a tape recorder and a calcu-

lator (Tr. 1362-1366). In June and July, Kammermeyer cashed

several World Wide Industries checks payable to him and de-

livered the proceeds to petitioners or their co-defendants. See

Tr. 1378, Gov’t Ex. 8C (May 30 check for $600, $500 of which

was delivered to Cason); Tr. 1381, Gov’t Ex. 8D (June 13

check for $750, $500 of which was delivered to Johnson);

Tr. 1382, Gov’t Ex. 8E (June 11 check for $1,200, all of which

was delivered to Merritts) ; Tr. 1883, Gov’t Ex. 8F (June 10

check for $1,500, $1,000 of which was delivered to Johnson

and $500 of which was delivered to Cason); Tr. 1385, Gov’t

Ex. 8G (June 21 check for $2,500, all of which was delivered

to Merritts) ; Tr. 1885-1386, Gov’t Ex. 8H (June 25 check for

$1,250, $1,000 of which was delivered to Johnson); Tr. 1389,

Gov’t Ex. 8J (July 19 check for $1,000, $500 of which was

delivered to Johnson and $500 of which was delivered to

Cason); Tr. 1390-1391, Gov’t Ex. 15 (check for $5,500, $1,500

of which was delivered to Johnson and $1,000 of which was

delivered to Cason). In early August Kammermeyer gave co-

defendant Kimbrough a check for $5,000 and $250 in cash

(Tr. 1416-1418).

7

1776, pp. 13-21) and Tharp (Pet. No. 76-6926,

pp. 18-22) contend that their use in evidence at trial

resulted in a fatal variance between the government’s

proof and the crimes charged in Counts 11 (the con-

spiracy) and 21 (racketeering) of the indictment.

Petitioner Peabody raised this issue in a post-trial

motion for a new trial, which the district court

granted in part, ruling that the evidence had caused

a variance with respect to the racketeering count but

not the conspiracy count (Pet. App. 28-30). Peti-

tioner Peabody continues to claim that he is entitled

to a new trial on the conspiracy count as well. Peti-

tioner Tharp, unlike petitioner Peabody, did not move

for a new trial in the district court; he now seeks a

new trial on both counts.

Petitioners’ claims are unpersuasive. Count 11

charged petitioners Peabody and Tharp, as well as

co-defendants Merritts and Kimbrough, with conspir-

ing to obtain property from Kammermeyer with

Kammermeyer’s consent induced under color of official

right, in violation of 18 U.S.C. 1951.* Nine overt

acts, “among other acts,” were specified: (1) in

May 1974 petitioner Tharp telephoned Kammermeyer

to announce a forthcoming visit by school board mem-

bers to the latter’s office; (2) both petitioners and

Kimbrough went to Kammermeyer’s office; (3, 4)

there they told Kammermeyer that he must make

“kickbacks” and that the payments were to be made

* We have ledged-a copy of the indictment with the Clerk of

this Court.

iieenieiereereeeeeeaceenceeneeitaneeesiiiitilll iain

8

to Merritts; (5) Kammermeyer called Merritts, who

ratified the instructions and said that the payments

would be shared by everyone; (6) Kammermeyer paid

Merritts $30,000 pursuant to the arrangement; (7)

in July 1974 Merritts, Kimbrough, and petitioner Pea-

body discussed the “kickback” payments; and (8, 9)

in September and October 1974 petitioner Tharp met

with Kammermeyer and discussed further “kickback”

arrangements. Each of these overt acts (with only

minor variations in the dates and the amount of “kick-

backs” paid) was proven through the testimony of

Kammermeyer (Tr. 1316, 1362-1366, 1373, 1378-1391,

1399-1417). See Pet. App. 34-35, 37. That the gov-

ernment introduced proof of other overt acts as well

did not cause a variance, for “the Government is not

limited in its proof at trial to those overt acts alleged

in the indictment.” United States v. Adamo, 534 F.

2d 31, 38 (C.A. 3), certiorari denied sub nom. Kear-

ney v. United States, 429 U.S. 841. See also, e.g.,

United States v. Quesada, 512 F.2d 1043, 1046 (C.A.

5), certiorari denied, 423 U.S. 946; United States v.

Clay, 495 F.2d 700, 706 (C.A. 7), certiorari denied,

419 U.S. 937; Napolitano v. United States, 340 F.2d

313, 314 (C.A. 1).

The foregoing decisions recognize that “[t]he es-

sence of the charge [of conspiracy] is a criminal

agreement.” United States v. Armone, 363 F.2d 385,

400 (C.A. 2), certiorari denied, 385 U.S. 957. “[T]he

Government is under no obligation to prove every

overt act alleged” in the indictment (United States

v. Adamo, supra, 534 F.2d at 38; see also United

9

States v. Williams, 474 F.2d 1047 (C.A. 5)): proof

of any one overt act is enough (United States v. Cas-

sell, 452 F.2d 533, 536 (C.A. 7); Bradford v. United

States, 413 F.2d 467, 469 (C.A. 5)). Indeed, in ac-

knowledgement of the fact that the illegal agreement

is the essence of the crime of conspiracy, it has fre-

quently been held that even when the government

fails to prove any overt act alleged in the indictment,

but proves an unalleged overt act, the variance is not

fatal. E.g., United States v. Adamo, supra, 534 F.2d

at 38-39; United States v. Fassoulis, 445 F.2d 13, 19

(C.A. 2), certiorari denied, 404 U.S. 858; Brulay v.

United States, 383 F.2d 345 (C.A. 9), certiorari de-

nied, 389 U.S. 986; United States v. Armone, supra;

Napolitano v. United States, supra; United States v.

Negro, 164 F.2d 168, 173 (C.A. 2); Culp v. United

States, 131 F.2d 93, 100 (C.A. 8); Worthington v.

United States, 1 F.2d 154, 155 (C.A. 7), certiorari

denied, 266 U.S. 626; but cf. United States v. Davis,

533 F.2d 921, 929 n. 11 (C.A. 5).

In short, here the government proved all nine overt

acts alleged in the indictment to have furthered the

conspiracy; the introduction of evidence regarding

additional overt acts did not defeat the government’s

case on Count 11.

It is the same with regard to petitioner Tharp’s

claim of a variance under Count 21. That count

charged that petitioners and their co-defendants

unlawfully and knowingly did conduct and par-

ticipate directly and indirectly, in the conduct of

[the school board’s] affairs through a pattern of

10

racketeering activity, in that the defendants did

unlawfully affect commerce by obtaining prop-

erty from [Kammermeyer, with his] consent in-

duced under color of official right, said acts being

a violation of * * * Section 1951 * * *. In

this regard the Grand Jury incorporates by ref-

erence Counts VIII, XI, XII, XIII, XIV, XV, and

XVI of this indictment. * * *°

Petitioner Tharp’s claim is not that the indictment

failed to state an offense under the Anti-Racketeering

Act; rather, he asserts that there was a variance be-

tween the proof and the indictment caused by the

government’s introduction into evidence of “kick-

backs” that were not specified in the indictment. But

just as the government is not limited to proof of the

overt acts charged in an indictment for conspiracy,

there is no reason to limit the government’s proof in

an Anti-Racketeering Act case to the acts amounting

to “a pattern of racketeering activity” that are men-

tioned in the indictment. Here the government proved

numerous payments by Kammermeyer to Merritts

that were made at the insistence of petitioner Tharp

and his co-defendants and that were to be shared

among them. These payments were alleged in Count

21 by that count’s incorporation by reference of Count

11, which charged that pursuant to the conspiracy

among the defendants Kammermeyer paid “$30,000

‘Counts 12 through 16 (each of which the government

proved at trial) charged petitioner Cason and co-defendants

Merritts, Johnson, and Kimbrough with substantive violations

of Section 1951 stemming from their receipt of “kickbacks”

from Kammermeyer.

11

more or less” to Merritts for distribution among the

school board members. Each payment exacted from

Kammermeyer could have been considered a separate

act of racketeering * for purposes of showing “a pat-

tern of racketeering activity” under Section 1962 (see

United States v. Parness, 503 F.2d 430, 438 (C.A. 2),

certiorari denied, 419 U.S. 1105; United States v.

Moeller, 402 F. Supp. 49, 58 (D. Conn.)), and the

fact that petitioner Tharp may have committed and

the government offered proof of other acts that might

also have been considered among those constituting

“a pattern of racketeering activity” did not vitiate

the conviction. See United States v. Parness, supra."

2. Petitioners Peabody (Pet. No. 76-1776, pp. 21-

26) and Tharp (Pet. No. 76-6926, pp. 34-37) claim

that the district court erred in not granting their

motions for a severance. Each argues that if he were

tried separately, co-defendants Merritts and Cason

might have testified favorably to him.

The general rule is that “persons jointly indicted

should be tried together.” United States v. Kahn, 381

F.2d 824, 838 (C.A. 7), certiorari denied, 389 U.S.

¢ The district court correctly charged the jury that to convict

petitioners Peabody and Tharp on Count 21 it would have to

find beyond a reasonable doubt that each committed at least

two criminal acts in violation of 18 U.S.C. 1951 (Tr. 2471).

*We accordingly believe that the district court erred in

granting petitioner Peabody a new trial on Count 21. In any

event, petitioner Peabody’s windfall does not entitle petitioner

Tharp (who did not join in petitioner Peabody’s post-trial

motion in the district court) to a new trial on the racketeering

charge.

12

1015. This is particularly so where, as here, all of

the defendants are charged with participation in the

same conspiracy. bid. In such a case, to succeed on

a motion for a severance “[t]he moving party must

show that he will be unable to obtain a fair trial with-

out severance, not merely that a separate trial will

offer a better chance for acquittal” (United States v.

Allstate Mortgage Corp., 507 F.2d 492, 495 (C.A. 7),

certiorari denied, 421 U.S. 999), and the disposition

of such a motion is committed to the sound judgment

of the trial judge, whose decision is reviewable only

for an abuse of discretion. Schaffer v. United States,

362 U.S. 511.

The possibility that a co-defendant may be willing

to testify favorably to the movant only if the latter

is tried separately is one factor to be considered by

the district court in passing on a motion to sever

(United States v. Shuford, 454 F.2d 772 (C.A. 4)),

but it does not, standing alone, inevitably require that

the motion be granted. United States v. Cruz, 536 F.

2d 1264, 1267-1268 (C.A. 9); United States v. Fink-

elstein, 526 F.2d 517, 523-524 (C.A. 2), certiorari

denied sub nom. Scardino v. United States, 425 U.S.

960; United States v. Kahn, supra, 381 F.2d at 841.

The strength of the defendant’s interest in a separate

trial depends upon many factors, including the likeli-

hood that his co-defendant will in fact testify and the

significance of the exculpatory testimony that the de-

fendant asserts will be forthcoming. United States v.

Finkelstein, supra. Judged according to these stand-

13

ards, the district court’s refusal to grant petitioners

a severance was not an abuse of discretion.

Petitioner Peabody suggests (Pet. No. 76-1776, pp.

21, 25) only that Cason would have denied acceptance

of one of the many “kickback” payments made by

Kammermeyer—the April 10 payment to him of $500

to be divided equally between Peabody and Tharp (see

note 3, supra). In light of the government’s proof of

many other “kickbacks” by Kammermeyer to all the

defendants, this testimony can hardly be said to have

been of such substantial value to petitioners as to re-

quire a severance.

Petitioner Peabody claims (Pet. No. 76-1776, p. 21)

that he wished to call Merritts and Kimbrough simply

to testify about “the operation” of the school board and

does not indicate how such testimony would have aided

his defense. Petitioner Tharp suggests (Pet. No. 76-

6926, p. 34) that Merritts might have testified as he

did before the grand jury, i.e., that he_knew of no

wrongdoing by any board member. But Merritts was

convicted of perjury for this very testimony (and the

transcript of his grand jury testimony (Gov’t Ex. 33)

was accordingly before the jury in any case). Wheth-

er he would have been willing to repeat the same

testimony under oath a second time is therefore doubt-

ful, and the testimony would have been subject to

impeachment by evidence of the perjury conviction in

any event. In these circumstances,* the court of ap-

®* United States v. Shuford, supra, and United States v.

Echeles, 352 F.2d 892 (C.A. 7), relied upon by petitioners, are

distinguishable. In each case the exculpatory testimony of a

co-defendant would, if believed, have exonerated the defendant.

14

peals correctly ruled that the district court did not

abuse its discretion in refusing to grant separate

trials.”

3. Petitioner Tharp complains (Pet. No. 76-6926,

pp. 23-29) that the district court erred in admitting

evidence of hearsay statements of co-defendants John-

son and Cason, who were not charged with conspiracy.

But the existence of a conspiracy count is not a pre-

requisite for the introduction of hearsay statements

of co-defendants commonly engaged in an illegal

scheme (United States v. Snow, 521 F.2d 730, 736

(C.A. 9), certiorari denied, 423 U.S. 1090; United

States v. Snyder, 505 F.2d 595 (C.A. 5), certiorari

denied, 420 U.S. 993; Fed. R. Evid. 801(d) (2) (D)

and (E)); proof of a concert of unlawful activity is

sufficient.

Here the government proved such a concert of ac-

tion. The proof of petitioner Tharp’s role in the con-

spiracy charged was plainly sufficient (see pages 5-6

n.3, supra), and the involvement of Cason and Johnson

in the unlawful scheme was shown by their own deal-

ings with witness Kammermeyer.” Moreover, the

® The trial was not so lengthy or complex as to have preju-

diced petitioners. The government proceeded to trial only on

those counts charging offenses committed during a relatively

short time span in 1974 (page 3, supra). Moreover, as the

court of appeals observed (Pet. App. 34), “[t]he trial court

carefully cautioned the jury each time testimony was received

for merely a limited purpose or against only certain defend-

ants, and carefully instructed the jury before it retired.”

2°Cason and Johnson accepted payments from Kammer-

meyer (e.g., Tr. 1372, 1378, 1381, 1383). Both Cason and

15

jury was properly instructed as to the admissibility

of the statements of co-conspirators,” and there was

no need for the court to give a limiting instruction

Tharp met with Kammermeyer on July 24, 1974, to discuss

the “kickbacks” (Tr. 1397-1398), and Tharp had earlier par-

ticipated in a meeting with Kammermeyer at which the “kick-

backs” were discussed (Tr. 1362).

“ The court charged the jury (Tr. 2466-2467) :

In determining whether a conspiracy existed, the jury

should consider the actions and declarations of all of the

alleged participants. However, in determining whether

a particular defendant was a member of a conspiracy, if

any, the jury should consider only his acts and statements.

He cannot be bound by the acts or declarations of other

participants until it is established that a conspiracy ex-

isted, and that he was one of its members.

Whenever it appears beyond a reasonable doubt from

the evidence in the case that a conspiracy existed, and that

a defendant was one of the mernbers, then the statements

thereafter knowingly made and the acts thereafter know-

ingly done, by any person likewise found to be a member,

may be considered by the jury as evidence in the case as

to the defendant found to have been a member, even

though the statements and acts may have occurred in

the absence and without the knowledge of the defendant,

provided such statements and acts were knowing'vy made

and done during the continuance of such a conspiracy, and

in furtherance of some object or purpose of the conspiracy.

Otherwise, any admission or incriminatory statement

made or act done outside of court by one person may not

be considered as evidence against any person who was

not present and did not hear the statement made or see

the act done.

Therefore, the statements of any conspirator which

are not in furtherance of the conspiracy or made before

its existence or after its termination may be considered

as evidence only against the person making them.

16

each time such testimony was introduced. United

States v. Buschman, 527 F.2d 1082 (C.A. 7).

4, Fetitioners Tharp (Pet. No. 76-6926, pp. 32-

33) and Cason (Pet. No. 76-6907, p. 4) complain that

they were prejudiced when a government witness,

called to impeach co-defendant Johnson, incorrectly

identified petitioner Cason (rather than Johnson) as

the person to whom he had been instructed by Kam-

mermeyer to deliver a set of golf clubs. As the court

of appeals observed (Pet. App. 37), when this hap-

pened “the witness *.. immediately excused, his tes-

timony stricken, ana une jury admonished to entirely

disregard it.”

Petitioner Tharp asserts that he was prejudiced be-

cause he was alleged to have been the ultimate recipi-

ent of the golf clubs. Petitioner Cason claims that his

inability to cross-examine the witness resulted in a

denial of his right to choose whether or not to take

the stand. As the court of appeals ruled, however, the

district court’s prompt action removed any basis for

these claims. Indeed, petitioner Cason does not sug-

gest how, on cross-examination, he c.uld have dis-

credited the witness’s testimony any more than it

already had been by the district court.

5. Petitioners Tharp (Pet. No. 76-6926, pp. 30-31)

and Cason (Pet. No. 76-6907, p. 4) contend that they

were prejudiced by the prosecutor’s reference in his

opening statement to tape recordings that were never

introduced into evidence * and by the inadvertent sub-

122 The government decided not to offer the tapes for intro-

duction into evidence because their sound quality was poor.

(Pet. App. 35),

17

mission of the recordings to the jury. The court of

appeals correctly ruled (Pet. App. 35-37), however,

that the one passing reference to the tapes in the gov-

ernment’s opening statement (Tr. 726) was not preju-

dicial given the overall evidence of petitioners’ guilt,

as well as the district court’s instructions (Tr. 2454)

and the prosecutor’s own caution (Tr. 2346) that

statements by counsel are not evidence.

The tapes were indeed inadvertently delivered to

the jury room, but the jury inquired about them with-

in fifteen minutes after they had retired to deliberate,

and the court had them removed and advised the jury

that they were not evidence in the case (see Tr. 2489-

2490). As the court of appeals noted (Pet. App. 36),

the delivery to the jury of exhibits not admitted into

evidence requires reversal only if the defendant is

prejudiced. See United States v. Bishop, 492 F.2d

1361 (C.A. 8), certiorari denied, 419 U.S. 833; United

States v. Burket, 480 F.2d 568 (C.A. 2). Here the

jury never listened to the tapes, and petitioners’ spec-

ulation that the jurors may have inferred that the

tapes were damaging to them and had been suppressed

on some technical ground does not constitute a show-

ing of prejudice sufficient to warrant reversal.

18

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

PAUL J. BRYSH,

Attorneys.

OCTOBER 1977.

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