# Opposition — Peabody v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 964

## Text

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.

©. &. COVERNEERT paintine OFfrice; 1977 240045 78

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2010%3A2. Public record. Not legal advice.