Petition — Cisternino v. United States

Supreme Court of the United

: October Term, 1977

No. VU- 34 $

PASQUALE J. CISTERNINO,

P etitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

: To the United States Court of Appeals

For the Sixth Circuit

GERALD A. MESSERMAN

Gop, Rotatorr, MEss—ERMAN

& Scuwartz Co. L.P.A.

1100 Investment Plaza

Cleveland, Ohio 44114

Counsel for Petitioner

Oe ee

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-8647

c-

TABLE OF CONTENTS

caine ndeneipenewin 1

NE

Guess Faeeeee 2... .........-._-..-.. 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED .- ieee ae Se

AER LENE SR A a

REASONS FOR GRANTING THE WRIT .._-__-_-.--_ 10

ES ER ET

APPENDIX:

Opinion of the United States Court of Appeals for

the Sixth Circuit affirming conviction —

and filed February 22, 1977) _____.____________ Al

Order of the United States Court of iaiina for

the Sixth Circuit denying application for rehear-

ing (filed August 3, 1977) ...._............... Al3

TABLE OF AUTHORITIES

Cases

Campbell v. United States, 352 F.2d 359 disten Cir.

lr ae ERE R a

Carnley v. Cochran, 369 U.S. 506 _-____- ache. ae

Cupp v. Naughten, 414 U.S. 141 - ald >

Gaither v. United States, 413 F.2d 1061 (D.C. Cir.

1969) ____- OOP TI ETE OH a Pee Bee 13

Glasser v. United States, 315 U.S. 60 _______-__14, 15, 18

Griffin v. California, 380 U.S.609 _... -....__-----s«19

In Re April 1975 Grand Jury, 531 F.2d 600 (D.C. Cir.

BREE - achjsnstbennsdnostincinn tnetacitaep idea dtetabasabiadiitelsindiets 16

1

Kotteakos v. United States, 328 U.S. 750 _________-- 13

Linden v. United States, 296 F. 104 (3rd Cir. 1924) _. 20

Lollar v. United States, 376 F.2d 243 (D.C. Cir. 1967) 16

McMillen v. United States, 386 F.2d 29 (1st Cir.

1967), cert. denied, 390 U.S. 1031 __._- <r a

Schaffer v. United States, 362 U.S. 511 _____-_----- 21

Stirone v. United States, 361 U.S. 212

United States v. Birmingham, 447 F.2d 1313 (10th

| Rg et eee isliepiedgeetibai 19

United States v. Bostic, 480 F.2d 968 (6th Cir. 1973) 13

United States v. DeCavalcante, 440 F.2d 1264 (3rd

Cir. 1971)

United States v. Foster, 469 F.2d 1 (1st Cir. 1972) _. 15

United States v. Gaines, 529 F.2d 1038 (7th Cir.

EE ee ie RO SES rere een 16

United States v. Mandell, 525 F.2d 671 (7th Cir.

1975), cert. denied, 423 U.S. 1049 ___..._______ 16

United States v. Marionneaux, 514 F.2d 1244 (5th

NER AR ape SO ce Se 21

United States v. Masiello, 235 F.2d 279 (2nd Cir.

1956), cert. denied, 352 U.S. 882 _...._. 11

United States v. Maselli, 534 F.2d 1197 (6th Cir.

RR a eRe A OS SEAL. Cn ee 18

Wilson v. United States, 149 U.S. 60 _...... 19

Constitution, Statutes and Rules

Constitution of the United States:

mr

Statutory Provisions:

Title 18, United States Code, Section 371 aise

Title 18, United States Code, Section 659 - a

Rule:

Federal Rules of Criminal Procedure, Rule 8(b) 21

Miscellaneous

AMERICAN Bar ASSOCIATION PROJECT ON STAND-

ARDS FOR CRIMINAL JUSTICE, STANDARDS ReE-

LATING TO THE DEFENSE Function (1971),

SS) Eee SE

oe ere ae

Supreme Court of the United States

October Term, 1977

No. __.

PASQUALE J. CISTERNINO,

Petitioner,

vs. |

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner, Pasquale J. Cisternino, respectfully peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Sixth Circuit

in this case.

OPINION BELOW

The opinion of the Court of Appeals (Appendix,

infra, pp. la-12a) is reported at 549 F.2d 1088.

JURISDICTION

The judgment of the Court of Appeals (Appendix,

infra, pp. la-12a) was entered on February 22, 1977. On

August 3, 1977, the Court of Appeals denied a petition

2

for rehearing (Appendix, infra, p. 13a). The jurisdiction

of this Court is invoked pursuant to 28 USC §1254(1).

QUESTIONS PRESENTED

Convicted of a single count of conspiracy on an indict-

ment which charged two separate counts of conspiracy

against two entirely different groups of defendants, peti-

tioner submits that the following questions are raised:

(1) Whether an indictment which charged petitioner

simply with conspiring with one “Michael James Ryan

aka Willie,” with no allegation that petitioner conspired

with any other named or unnamed persons, was improper-

ly amended at trial by an instruction to the jury which

permitted conviction to rest upon a finding that petitioner

had conspired with at least one other person “whether

a defendant or not and whether named in the indictment

or not,” and which repeatedly irformed the jury that the

indictment charged a conspiracy between petitioner and

other persons named in a separate conspiracy count of

the indictment or between petitioner and other persons

unknown?

(2) Whether the trial judge was required to advise

petitioner of the risks attendant upon representation by

the same attorney who represented two co-defendants

charged with an entirely separate, but jointly tried, con-

spiracy offense?

(3) Whether a jury instruction advising that “every

witness is presumed to speak the truth,” in a trial in

which the government’s case consisted almost exclusively

of the uncorroborated testimony of a single accomplice

witness and in which the defendant offered no evidence,

invades the presumption of innocence and constitutes

plain error?

3

(4) Whether a comment made to the jury in a sup-

plemental instruction delivered after four days of delibera-

tions following a 4% day trial, advising the jury that there

was “no reason to believe * * * that more detailed or

precise evidence could be produced on behalf of any of

the parties to this litigation,’ constituted comment upon

the failure of the petitioner to testify or to present

evidence?

(5) Whether the district court erred in denying a

motion for severance upon an indictment which charged

two separate counts of conspiracy against two entirely

separate groups of individuals, where no individual was

named as co-conspirator in both conspiracy counts?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent portion of the Fifth Amendment to the

United States Constitution provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, * * *; nor shall

any person * * * be compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of

bw © 2 9.

The pertinent portion of the Sixth Amendment to

the United States Constitution provides:

In all criminal prosecutions, the accused shall

enjoy the right * * * to be informed of the nature

and cause of the accusation; * * * and to have the

Assistance of Counsel for his defense.

Section 371 of Title 18 of the United States Code

provides, in pertinent part, as follows:

4

If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, * * * and one or more of such

persons do any act to effect the object of the con-

spiracy, each shall be fined not more than $10,000

or imprisoned not more than five years, or both.

STATEMENT

Petitioner was indicted on April 24, 1975, in the

United States District Court for the Northern District of

Ohio, Eastern Division. The eighteen-page indictment

named fifteen defendants and contained six separate

counts. Counts I, III and V charged conspiracies to steal

and to possess 25,000 pairs of levis stolen from a railroad

trailer in Cincinnati while en route to Kentucky, in viola-

tion of 18 U.S.C. 371. Counts II, IV and VI charged

violations of 18 U.S.C. 2 and 659 arising out of the theft

and possession of the stolen goods.

Petitioner was charged only in Counts V and VI of

the indictment. He was named, however, in nine of the

forty-nine overt acts contained in Count III which charged

twelve of the other named co-defendants, two unindicted

co-conspirators, “and other individuals unknown to the

grand jury,” with conspiring to possess the same property

referred to in Count V.

Count V of the indictment, the sole charge upon

which petitioner was ultimately convicted, charged only

petitioner and “Michael James Ryan aka Willie” as con-

spirators (J.A. 15). It named no unindicted co-conspira-

tors, nor did it charge participation of “other individuals

unknown to the grand jury” as did Count III (J.A. 4).

However, the overt acts set forth in Count V named

Emund E. Flott, an unindicted co-conspirator in Count

III, as a participant in nine of the eleven overt acts. In

5

addition, one of the persons jointly tried with petitioner

and named as a defendant in Count III of the indictment,

James Alan Blanton, was named as a participant in an

overt act in Count V (J.A. 16-17). All but two of the

eleven overt acts set forth in Count V were also included

in Count III (J.A. 10-14, 16-17).

On May 27, 1975, prior to trial, the court conducted

a hearing at which it instructed the attorney who was

representing petitioner and two of the defendants named

in Count III of the indictment to discuss with his clients

the possibility of conflict arising out of joint representa-

tion. The court directed the attorney to retire with his

‘clients to a room made available by the court “to discuss

these matters and then report back to the court subse-

quently on concluding these discussions” (H. Tr. 4).*

At the conclusion of counsel’s conference with petitioner

and the other two co-defendants, the court asked counsel:

Mr. Giuliani, have you had an opportunity of

discussing with your clients the subject matter of the

court’s discussion with you? [H. Tr. 7]

Counsel responded that he had discussed the matter and

that it was his conclusion that “there is no conflict of

interest,” and that his clients would “waive any possibility

of any conflict that may occur at the trial of this case”

(H. Tr. 7). Petitioner acquiesced in that representation

(H. Tr. 8).

Trial commenced against petitioner and five of the

defendants named in Count III on June 9, 1975. The only

other conspirator named in Count V, Michael James Ryan,

was severed when he appeared without counsel on the

day of trial (J.A. 22).

The evidence demonstrated that 875 cartons of Levi-

Strauss clothing were stolen from interstate commerce

on December 19, 1974. The primary evidence offered by

*“ H. Tr.)” refers to the separate transcript of the hearing

conducted on May 27, 1975.

6

the government to establish a connection between that

theft and each of the named defendants was the testimony

of one Edmund E. Flott. As the Court of Appeals ob-

served, “It was Flott’s testimony which linked each ap-

pellant to the stolen goods.” (App., p. Al). The Court

of Appeals also accurately and succinctly characterized

Flott’s testimony as follows:

Flott’s testimony was central to the Government’s

case and defense counsel vigorously attacked his

credibility during cross-examination and final argu-

ment. On the stand, Flott admitted inter alia that he

had an extensive criminal record including convic-

tions for armed robbery, bank robbery, receipt of

stolen property and escape and that he had been

imprisoned nearly half his life; that while in prison

in 1963 he had become an FBI informant; that he

continued as an informant for four years following

his release from prison and was paid between $2,000

and $3,000 for information; that he agreed to testify

in this case only after his FBI contact informed him

that the Bureau had evidence of his complicity in

the crime; that he had not been charged with the

crime even though he had admitted guilt; that he

had agreed to make a statement on condition that

he and his family be relocated and that relocation

had occurred; that the Government was paying him

$1,060 in monthly subsistence payments; that he had

threatened at least one of the defendants; and that

he would do almost anything to keep out of jail. He

also testified that he had failed to report to the FBI

all criminal activity of which he was aware, par-

ticularly if he or one of his close associates was in-

volved. [App. pp. A9-A10].

At trial, Flott testified that he was contacted by Blan-

ton concerning the stolen clothing, that he was asked

whether he could get rid of the clothing, that he made

several unsuccessful efforts to do so, and that he ultimately

7

made arrangements to sell the clothing to petitioner and

to an individual named “Willie” whom Flott knew by no

other name (J.A. 51).

Early in the trial, counsel for petitioner objected to

the admission of a statement of one of the defendants

named in Count III on the ground that it was not admissible

against petitioner (Tr. 92-93). Counsel for the govern-

ment acknowledged that petitioner “who is named only

in Counts V and VI, may be entitled to a proper instruc-

tion with regard to statements made in furtherance of

the other conspiracies which are not applicable” to peti-

tioner (Tr. 94). At that point, counsel for petitioner re-

quested a separate trial in light of the complexity of the

testimony that would be offered with respect to charges

unrelated to Count V (Tr. 95). The motion was denied.

It was subsequently renewed when counsel for petitioner

complained of the prejudice to petitioner arising out of

the joint trial of separate conspiracies against separate

defendants (Tr. 562-63). Again, the motion was over-

ruled.

Petitioner presented no evidence at trial.

In its charge to the jury, the court advised that the

entire indictment would be with the jury during its de-

liberations (J.A. 91). The court combined its charge con-

cerning the elements of the separate conspiracies charged

in Counts III and V of the indictment. (J.A. 96-113). In the

course of the charge, he referred to a single “conspiracy”

charged in Counts III and V upon at least ten occasions

(J.A. 88, 98, 100, 101, 105). He advised that the govern-

ment was required to prove, among other things,

that two or more persons, including one or more of

the accused, were knowingly members of the con-

spiracy as charged in the indictment. [J.A. 100].

Instructing further upon the party dimension of the

conspiracy charge, the court stated:

8

The indictment charges a conspiracy among the

respective defendants named in Counts III and V

respectively of the indictment, and others, some of

whom are named in the respective counts of the

indictment as co-conspirators but not as defendants,

and other persons unknown to the grand jurors. A

person cannot conspire with himself and therefore

you cannot find any of the defendants guilty unless

you find beyond a reasonable doubt that such de-

fendant or defendants participated in the respective

conspiracy in which such defendant is respectively

charged in the indictment with at least one other

person named in such count, whether a defendant

or not, and whether named in the indictment or not.

[J.A. 101-102] (Emphasis added).

After listing each of the fifteen defendants named in

the indictment, the court instructed the jury that the

guilt or innocence of Michael James Ryan, aka Willie, was

no longer before it (J.A. 86), and that it should concern

itself only with the guilt or innocence of the defendants

on trial (J.A. 87). The indictment was read to the jury,

however, as written (J.A. 88-91). After reading the

indictment, the court stated that the only defendant

charged in the conspiracy alleged in Count V was peti-

tioner (J.A. 91).

The jury was instructed:

The evidence in the case need not establish * * *

that all of the persons charged to have been members

of the alleged conspiracy were such. [J.A. 100].

In the course of advising the jury concerning the

manner in which it was to determine credibility of wit-

nesses, the court stated:

9

Every witness is presumed to speak the truth;

however, if you find the presumption of truthfulness

to be outweighed as to any witness, you will give

the testimony of that witness such credibility, if any,

as you may think it deserves. [J.A. 115-16].

After four-and-a-half days of deliberations and two

announcements that the jury was deadlocked (J.A. 125,

128-29), the court, over objection, delivered an Allen

charge. In the course of that supplemental instruction,

the court announced:

There appears no reason to believe that another

trial would result in a better or a more extensive

presentation by the various sides to this litigation

than that which has been made to you.

So there appears no reason to believe that the

case would ever be submitted to 12 men and women

more conscientious, more impartial, or more com-

petent to decide it, or that more detailed or precise

evidence could be produced on behalf of any of the

parties to this litigation. Upon reflection, this must

be self-evident to each of you who have heard all

of the evidence in this case. [J.A. 136].

As the Court of Appeals observed, “Within an hour

of receiving the supplemental instruction, the jury re-

turned a verdict” (App., p. A2). Petitioner was found

guilty of the conspiracy offense charged in Count V and

not guilty of the substantive offense charged in Count

VI (J.A. 141).

10

REASONS FOR GRANTING THE WRIT

I.

The Court of Appeals’ assessment of the impact of a

jury instruction which permitted conviction to rest upon

proof that petitioner had conspired with persons other

than an indicted co-conspirator is in conflict with this

Court’s decision in Stirone v. United States, 361 U.S. 212.

In Stirone, a jury instruction which permitted a Hobbs

Act conviction to rest upon proof that the defendant’s

conduct had impact upon the exportation of steel from

Pennsylvania, when the indictment charged an effect upon

importation of sand to Pennsylvania, was characterized

as a constitutionally impermissible amendment of the in-

dictment:

Although the trial court did not permit a formal

amendment of the indictment the effect of what it

did was the same. * * * While there was a variance

in the sense of a variation between pleading and

proof, that variation here destroyed the defendant’s

substantial right to be tried only on charges pre-

sented in an indictment returned by a grand jury.

Deprivation of such a basic right is far too serious

to be treated as nothing more than a variance and then

dismissed as harmless error. [361 U.S. at 217].

Here, the trial court amended the indictment far more

drastically than in Stirone. Petitioner was charged in only

one of three conspiracy counts contained in a single in-

dictment. The charge, Count V, named only petitioner

and “Michael James Ryan aka Willie” as co-conspirators.

It named no unindicted co-conspirators. It did not allege

a conspiracy with unknown persons.

The trial court, however, in an apparent effort to

consolidate the instruction on Count V with a separate

conspiracy count against entirely different defendants,

thoroughly altered the indictment with virtually every

word he uttered.

11

First, the court relieved the government of the bur-

den of proving the specific party dimension of the offense

charged in Count V by advising the jury that it was not

to concern itself with the guilt or innocence of Ryan (J.A.

86-87). Because Ryan was the only person charged as a

co-conspirator with petitioner, the government was re-

quired to establish guilt of both in order to prove guilt

of either. United States v. Masiello, 235 F.2d 279 (2nd

Cir. 1956), cert. denied, 352 U.S. 882.

Next, the court specifically advised that the jury was

not required to find that Ryan participated in the offense

charged in Count V by stating:

The evidence in the case need not establish * * *

that all of the persons charged to have been members

of the alleged conspiracy were such. [J.A. 100].

Combined with the earlier statement that Ryan’s guilt

was not in issue, this statement entirely relieved the gov-

ernment of the burden of proving Ryan’s participation.

Had any question remained, it was resolved by the state-

ment that the evidence was sufficient if it established

* * * that two or more persons, including one or more

of the accused, were knowingly members of the con-

spiracy as charged in the indictment. [J.A. 100].

(Emphasis added).

Having relieved the government of the burden of

proving the charge made, the court went on to authorize

conviction on a charge not made. This was accomplished,

in part, by repeatedly referring to a single “‘conspiracy”

in Counts III and V of the indictment (J.A. 88, 98, 100,

101, 105). Both counts involved the same stolen property,

the same time period, and the same objective—a violation

of 18 U.S.C. 659. By consolidating the instruction on both

counts, the critical distinction between the two, the fact

that each charged entirely different parties, was quickly

forgotten. The court erroneously stated:

12

The indictment charges a conspiracy among the

respective defendants named in Counts III and V

respectively of the indictment, and others, some of

whom are named in the respective counts of the in-

dictment as co-conspirators but not as defendants,

and other persons unknown to the Grand Jurors.

[J.A. 101].

This statement is totally false in the following respects:

(1) The indictment does not charge “a conspiracy among

the respective defendants named in Counts III and V,” it

charges separate conspiracies among the particular per-

sons charged in each count; (2) Count V does not charge,

as the instruction states, a conspiracy between petitioner

“and others * * * named * * * as co-conspirators but

not as defendants,” it charges only petitioner and Ryan;

and (3) Count V does not charge a conspiracy with “other

persons unknown to the Grand Jurors,” although Count

III contains such an allegation.

The statement of the court thoroughly confused the

two charges and amended Count V to broaden the party

dimension of the charge to include the defendants named

in Count III, persons named as co-conspirators but not as

defendants, and persons unknown to the grand jury.

This extraordinary amendment of a count which charged

only a conspiracy between two named individuals was

further broadened when the court added that a defendant

might be convicted upon proof of participation

* * * with at least one other person named in such

count, whether a defendant or not, and whether

named in the indictment or not. [J.A. 102].

With this confusing statement, the court expressly per-

mitted the jury to find a conspiracy between petitioner

and Edmund Flott or James Blanton, individuals named

in Count V as participants in overt acts, or between peti-

tioner and anyone else in the world.

13

The original charge of a conspiracy solely between

petitioner and Ryan was converted into a charge between

petitioner and anyone. This is, as numerous courts have

held, an intolerable amendment of the indictment.' The

charge was amended after all evidence had been presented

and all opportunity to defend against the new charge had

concluded. In such circumstances, it is not appropriate

to characterize the instruction, as did the court below,

as one which simply “lacked a degree of clarity.” (App.

p. A7). The only proper portion of the instruction came

when the charge contained in Count V was read to the

jury. But the indictment was specifically repudiated by

the instruction. It is not appropriate in such circumstances

to impose upon the defendant, as did the court below, the

burden of demonstrating prejudice arising from the

amendment, although prejudice is manifest. Stirone v.

United States, supra. Such patent violation of the Fifth

Amendment right to be tried only on charges presented

in an indictment returned by a grand jury and of the

Sixth Amendment right to adequate notice of the accusa-

tion should not go unnoticed. Clear and distinct notice

of the charges is particularly important in a conspiracy

case, as this Court has clearly recognized:

The dangers of transference of guilt from one to

another across the line separating conspiracies, sub-

consciously or otherwise, are so great that no one

really can say prejudice to substantial right has not

taken place. [Kotteakos v. United States, 328 US.

750, 774].

Here, the “transference of guilt” was impermissibly

invited by a jury instruction which failed to distinguish

between separate conspiracies and separate conspirators.

1 See, e.g., United States v. Bostic, 480 F.2d 968 (6th Cir.

1973); See also, Gaither v. United States, 413 F.2d 1061 (D.C.

Cir. 1969); United States v. DeCavalcante, 440 F.2d 1264 (3rd

Cir. 1971).

14

Il.

Petitioner was represented at trial by the same at-

torney who represented two other co-defendants charged in

entirely separate counts of the indictment. Aware of the

fact of joint representation, the trial court, before trial,

instructed petitioner’s attorney to explain to him and the

others whom the attorney represented the possibility of

conflict arising out of joint representation. The court did

not explain any of the possible conflicts or risks attendant

upon joint representation, but left this matter entirely to

counsel. The court insisted, after counsel had discussed

the matter with petitioner, that counsel and petitioner

advise the court that there was no conflict of interest and

that petitioner would “waive any possibility of any conflict

that may occur at the trial of this case.” (H. Tr. 7).

While the procedure employed by the court may have

been well designed to protect the court against the necessity

of declaring a mistrial, it was hardly adequate to protect

petitioner’s interest in enjoying the effective assistance of

counsel. It is not, as this Court long ago observed, merely

conflicts of interest which may impair counsel’s effective-

ness:

Irrespective of any conflict of interest, the additional

burden of representing another party may conceivably

impair counsel’s effectiveness. [Glasser v. United

States, 315 U.S. 60, 75].

Here, the burden of joint representation was clearly

overwhelming. The only connection established between

petitioner and his co-defendants at trial was the fact that

both were represented by the same attorney. The attorney

was unable to assist the jury in separating the complex and

separate charges against the separate defendants, to com-

pare the evidence against petitioner’s co-defendants to that

offered against him, to dissociate petitioner from all co-

15

defendants, to insist that evidence admissible against others

not be considered against petitioner, or to focus solely upon

the intricate legal problems which concerned petitioner

solely. Unfortunately, this Court’s warning in Glasser v.

United States, supra, was ignored:

In conspiracy cases, where the liberal rules of evidence

and wide latitude accorded the prosecution may, and

sometimes do, operate unfairly against an individual

defendant, it is especially important that he be given

the benefit of the undivided assistance of his counsel

without the court becoming a party to the encumber-

ing of that assistance. |315 U.S. at 76]. (Emphasis

added).

The problems created by joint representation of co-de-

fendants in criminal trials, particularly in conspiracy cases,

has been the subject of controversy, comment and con-

fusion. It has led to a recommendation that joint repre-

sentation be barred except in the most extraordinary cir-

cumstances.

The potential for conflict of interest in representing

multiple defendants is so grave that ordinarily a law-

yer should decline to act for more than one of several

co-defendants except in unusual situations when, after

careful investigation, it is clear that no conflict is likely

to develop and when the several defendants give an

informed consent to such multiple representation.’

Judicial awareness of the dangers inherent in joint

representation of co-defendants has led to adoption of con-

flicting standards defining the duty imposed upon trial

courts to apprise defendants of the risks attendant upon

joint representation. The United States Court of Appeals

for the First Circuit, for example, instructed in United

States v. Foster, 469 F.2d 1 (1st Cir. 1972), that in all

* AMERICAN Bar ASSOCIATION PROJECT ON STANDARDS FOR

CRIMINAL JUSTICE, STANDARDS RELATING TO THE DeEreNsE FUNC-

Trion (1971), Section 3.5(b).

16

criminal trials conducted in that Circuit where one at-

torney speaks for two or more defendants

* * * it shall be the duty of the trial court, as early

in the litigation as practicable, to comment on some

of the risks confronted where defendants are jointly

represented to insure that defendants are aware of

such risks, and to inquire diligently whether they

have discussed the risks with their attorney, and

whether they understand that they may retain sepa-

rate counsel] * * * . [469 F.2d at 5]

The United States Court of Appeals for the Seventh

Circuit has adopted a similar, although not identical posi-

tion, by requiring a trial court to investigate the relevant

facts, advise the defendant, and determine whether con-

tinued representation of several defendants by a single

attorney would violate the Sixth Amendment, whenever

the possibility of conflict of interest arises during the

trial. United States v. Gaines, 529 F.2d 1038, 1043 (7th

Cir. 1976). The same court, however, declined, in United

States v. Mandell, 525 F.2d 671 (7th Cir. 1975), cert.

denied, 423 U.S. 1049 (1976), to adopt a rule which im-

poses an absolute obligation upon a trial judge to conduct

an inquiry concerning knowing waiver of single representa-

tion at the outset of any criminal trial in which defendants

are jointly represented. On the other hand, an absolute

obligation to conduct such an inquiry is imposed in the

District of Columbia. See, Lollar v. United States, 376

F.2d 243 (D.C. Cir. 1967); Campbell v. United States, 352

F.2d 359 (D.C. Cir. 1965).

The government itself has demonstrated a keen aware-

ness of the problems involved in joint representation and

has, on occasion, sought to prohibit an attorney from

representing several individuals in the same matter. See,

e.g., In Re April 1975 Grand Jury, 531 F.2d 600 (D.C. Cir.

1976).

17

In the instant case, the court adopted a procedure

which represents a combination of those applied in the

Second Circuit and in the Seventh Circuit. Inquiry was

made concerning the issue of representation before trial

commenced. However, the inquiry was not conducted by

the judge in open court. Rather, the attorney who repre-

sented several defendants was charged by the court with

responsibility to inform his clients of the dangers of joint

representation. Consequently, the record does not reflect

what thée-clients were told. It is not possible, therefore,

to determine from the record whether there was a knowing

and intelligent waiver of the right to single representation

and an understanding acceptance of the actual risks at-

tendant upon joint representation. This Court has refused

to predicate a finding of waiver of the constitutionally

protected right to the assistance of counsel on a record

which does not affirmatively demonstrate such a waiver.

See, e.g., Carnley v. Cochran, 369 U.S. 506. The same

principle is appropriately applied where the waiver in-

volved concerns the right to single representation.

The manner in which a court is to proceed for the.

purpose of protecting against possible impairment of the

Sixth Amendment right to counsel arising out of joint

representation of multiple defendants is an issue of major

importance to the administration of criminal law. The de-

fense bar is acutely in need of guidance concerning this

matter. The government has a keen interest in guarding

against some of the consequences of joint representation.

Trial courts require guidance concerning the proper pro-

cedure to be employed to protect defendants’ rights. Courts

of appeals, having arrived at conflicting decisions concern-

ing the proper role of the trial judge in dealing with joint

representation, require a definitive resolution of this re-

curring federal constitutional question. Finally, unless

this Court offers direction to federal courts which will

18

permit uniform and intelligent resolution of problems pre-

sented by joint representation, the principles adopted by

this court in Glasser v. United States, 315 U.S. 60, will be

seriously eroded.

Il.

Petitioner was tried and convicted on the uncorrobo-

rated testimony of one Edmund Flott. Flott admitted

involvement in the offenses charged in the indictment,

acknowledged an extensive felony record, and agreed

that he had been persuaded to testify by promises of leni-

ency, relocation and money. Petitioner offered no evidence

in his own behalf.

In these circumstances, the court improperly in-

structed the jury that, “Every witness is presumed to

speak the truth.” (J.A. 115). The presumption-of-truthful-

ness instruction has been unanimously condemned by

every court which has been called upon to consider the

charge. See, Cupp v. Naughten, 414 US. 141, 144, fn. 4.

Despite constant disapproval of the charge, it continues to

be given in federal trials. See. e.g., United States v. Ma-

selli, 534 F.2d 1197 (6th Cir. 1976).

While this Court, in a divided opinion in Cupp v.

Naughten, supra, declined to hold that the presumption-of-

truthfulness instruction by itself violated due process of

law, it recognized that all federal appellate courts which

have dealt with the instruction have, in the exercise of their

supervisory power, sought to prohibit use of the charge.

The case at bar demonstrates that those efforts have been

unsuccessful.

It has become evident that use of the presumption-of

truthfulness instruction raises an important question of

federal law which has not been, but should be, settled by

this Court. Unless there is an unequivocal prohibition of

19

the charge by this Court, its use will continue in a manner

which seriously threatens to impair the presumption of

innocence and to dilute the requirement that the govern-

ment prove guilt beyond a reasonable doubt. A clear de-

cision from this Court on the question will inform attorneys

that objection to the charge is appropriate and will apprise

federal trial courts that the charge should not be given.

Much judicial effort and many defendants’ rights may he

saved by such a ruling.

There was no objection at trial to the charge in the

instant case. That was the sole basis upon which the court

of appeals below affirmed petitioner’s conviction (App..,

p. A5). Other courts, in virtually identical circumstances,

have held that the instruction constitutes plain error re-

quiring reversal.’ Resolution of this conflict is an appro-

priate matter for this Court.

IV.

The jury did not find it easy to convict petitioner on

the uncorroborated testimony of Edmund Flott. The length

of deliberation exceeded the length of trial .

The trial court was able to overcome the jury’s difficul-

ties by delivering a supplemental instruction after 44% days

of deliberations and two announcements of deadlock. The

supplemental instruction raises serious questions of con-

stitutional magnitude.

Petitioner did not present evidence in his own behalf.

A defendant’s failure to testify or to present evidence, this

Court has repeatedly held, may not be commented on by

the prosecutor or the court. Griffin v. California, 380 U.S.

609; Wilson v. United States, 149 U.S. 60. Despite the

unequivocal and oft-repeated command of this Court that

3 See, e.g., McMillen v. United States, 386 F.2d 29 (1st Cir.

1967), cert. denied, 390 U.S. 1031 (1968); United States v. Bir-

mingham, 447 F.2d 1313 (10th Cir. 1971).

20

silence of the accused is not the proper subject of comment,

the trial court persuaded the jury to return a verdict by

stating:

There appears no reason to believe that another

trial would result in a better or a more extensive pres-

entation by the various sides to this litigation than

that which has been made to you. [J.A. 136.]

This statement clearly suggested to the jury that no defense

had been presented because none could be presented. Were

there any doubt, however, concerning the message of the

court, such doubt was immediately resolved when the

court added:

So there appears no reason to believe * * * that

more detailed or precise evidence could be produced

on behalf of any of the parties to this litigation. Upon

reflection, this must be self-evident to each of you who

have heard all of the evidence in this case. [J.A. 136.]

(Emphasis added).

The question of whether or not the defendant should

testify or go forward with evidence in any case is a tactical

decision which must be based upon an appraisal of the

proof offered by the government. Here, the court trans-

lated the decision not to go forward into a factually un-

supported and legally impermissible declaration that no

defense was presented because none could be presented.

Uttered by the court rather than the prosecutor, these

words must have been interpreted to mean precisely what

they said. What they said constitutes an impermissible

invasion of the Fifth Amendment privilege against self-

incrimination far more egregious than the often condemned

observation of a prosecutor that the government’s evidence

has not been contradicted. See, e.g., Linden v. United

States, 296 F. 104 (3rd Cir. 1924).

Preservation of the interests protected by the Fifth

Amendment and prohibition of the excesses in which

-

~ “ * a

5 tp ae i CATE ie SS Des ae tt = ae i ac he cle sald Se Ns AB es OPE EI A ntl ai i a 8

ee fee ee

iia i

21

courts sometimes engage in delivering supplemental in-

structions designed to yield a verdict can be accomplished

by declaring that the charge given herein will not be

tolerated.

V.

Petitioner was jointly indicted with fourteen other

persons. Twelve of the other persons were named in the

conspiracy charged in Count III of the indictment. None

of those twelve defendants was charged in the conspiracy

count in which petitioner was charged.

| Six of the fifteen named defendants, including peti-

tioner, were jointly tried. During trial, petitioner’s coun-

sel requested severance upon two occasions. His requests

were denied.

The joint trial of petitioner and five other defendants

named in entirely separate charges was in direct contraven-

tion of Rule 8(b) of the Federal Rules of Criminal Pro-

cedure, which provides:

Joinder of Defendants. Two or more defendants

may be charged in the same indictment or information

if they are alleged to have participated in the same

act or transaction or in the same series of acts or

transactions constituting an offense + offenses. Such

defendants may be charged ir one or more counts to-

gether or separately and ali of the defendants need

not be charged in each count.

As petitioner and his co-defendants were not “alleged to

have participated in the same act or transaction or in the

same series of acts or transactions,” joinder of the two

separate conspiracies was improper ab initio. See, United

States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975).

Denial of the motion to sever was also in direct viola-

tion of the clear mandate of this Court announced in

Schaffer v. United States, 362 U.S. 511:

&

22 | Al

* * * [T]he trial judge has a continuing duty at all APPENDIX

stages of the trial to grant a severance if prejudice does

appear. And where, as here, the charge which origin- Opinion of the United States Court of Appeals

ally justified joinder turns out to lack the support of for the Sixth Circuit Affirming Conviction

sufficient evidence, a trial judge should be particularly (Filed February 22, 1977)

sensitive to the possibility of such prejudice. [362 |

US. at 516. | No. 76-1580

The prejudice which resulted to petitioner is manifest. UNITED STATES COURT OF APPEALS

For THe SrxtH Circuit

CONCLUSION UNITED STATES OF AMERICA,

For the foregoing reasons, it is respectfully submitted Plaintiff-Appellee,

that the Petition for a Writ of Certiorari should be granted. PASQUALE J. CISTERNINO,

Defendant-Appellant.

Respectfully submitted,

GERALD A. MESSERMAN AppEAL from the United States District Court

Gop, Rotatori, MESSERMAN for the Northern District of Ohio, Eastern Division.

& ScHwartz Co. L.P.A.

1100 investment Plaza Before: Pxiturps. Chief Circuit Judge, and Crxe-

Cleveland, Ohio 44114 BREZZE and LiveE.y, Circuit Judges.

(216) 696-6122

Counsel for Petitioner CELEBREZZE, Circuit Judge. Appellants appeal their

convictions on various counts of a six-count indictment

which charged fifteen individuals with conspiracy and

possession of goods stolen from interstate commerce in

| violation of 18 U.S.C. §§ 2, 371 and 659 (1970). The

goods in question were 25,000 pairs of blue jeans stolen

from a railroad trailer in Cincinnati, Ohio while en route

from Knoxville, Tennessee to Florence, Kentucky. Ap-

pellants, and others named in the indictment, were tried

jointly before a jury in the Northern District of Ohio,

Eastern Division. The trial lasted eight days. The chief

witness for the prosecution was Edmund Eugene Flott,

an unindicted accomplice, co-conspirator and government

| informant. It was Flott’s testimony which linked each

| Appellant to the stolen goods. At the close of trial and

~~

A2

after receiving instructions from the Court, the jury

retired to consider a verdict. Twice during deliberations

the jury informed the Court of its inability to reach a

verdict and each time the Judge responded with the state-

ment that the “jury will continue its deliberations with

a view of arriving at a verdict.” Finally, after several

hours of deliberation over a four day period, the Judge

issued an Allen charge. Within an hour of receiving the

supplemental instruction, the jury returned a verdict.

Appellant Brody was convicted of possession of goods

stolen from interstate commerce as charged in count four

of the indictment; Appellants LaRiche and Dal Pra were

found guilty of conspiracy to possess goods stolen from

interstate commerce as charged in count three of the

indictment; and Appellant Cisternino was found guilty

of conspiracy to possess stolen goods as charged in count

five.

All Appellants join in arguing that the District Court

erred in issuing the Allen charge. After the instruction

was given, defense counsel uniformly objected to the

charge. However, no specific objection was entered as

to any particular portion of the charge so we must review

the supplemental instructions under the “plain error”

standard of Rule 52(b) of the Federal Rules of Criminal

Procedure. See United States v. Billingsley, 474 F. 2d 63,

66 (6th Cir. 1973). In United States v. Harris, 391 F. 2d

348, 354 (6th Cir. 1968), this Court stated that “[WlJe

have no criticism with the Allen charge as such... . We

are of the opinion however that . . . it approaches the

limits beyond which a trial court should not venture in

urging a jury to reach a verdict.” See also United States

v. Scott, No. 76-1805 at 3-5 (6th Cir. Jan. 7, 1977). Ap-

pellants do not contest the constitutionality of the Allen

charge, but contend rather that the charge exceeded the

.

}

;

1

’

;

A3

limits established by the Supreme Court in Allen v. United

States, 164 U.S. 492 (1896). Specifically, they argue

that the charge was defective because it: 1) im:properly

informed the jury that the case must be disposed of some-

time; 2) failed to restate the Government’s standard of

proof; 3) erroneously informed the jury that their sole

function was to find the truth; 4) coerced only a minority

favoring acquittal to re-examine its position; and 5) im-

properly inferred that the failure to reach a verdict re-

flected unfavorably on the jury. In addition, Appellant

Cisternino argues that the Court indirectly commented

on his failure to take the stand and testify in his own

defense. We find these contentions to be totally without

merit.

At the outset, we note that instructions to the jury

“may not be judged in artificial isolation but must be

viewed in the context of the overall charge.” Cupp v.

Naughton, 414 U.S. 141, 147 (1973). See also United

States v. Lynch, 477 F. 2d 924, 925 (6th Cir. 1973). Ap-

pellants urge that the instruction that the case “must be

disposed of at some point in time” was coercive because

it excluded the possibility that the jury could disagree and

the case end in mistrial. For support, Appellants cite a

number of cases which held it reversible error for an

Allen charge to state that the case “must be decided.”

See United States v. Jenkins, 380 U.S. 445, 446 (1965);

United States v. Harris, 391 F. 2d at 356-57; United States

v. Flannery, 451 F. 2d 880, 883 (1st Cir. 1971). However,

in United States v. Harris, 391 F. 2d at 356, we observed

that there is “a clear distinction between the statement

‘this case must be decided’ and ‘it must be disposed of

some time.’” The latter phrase merely restates the ob-

vious proposition that all cases must come to an end at

some point, whether by verdict or otherwise. The ‘“dis-

A4

posed of” language in the charge should also be read in

conjunction with the Court's admonition to the jurors

to adhere to their individual judgment and conscience in

reviewing the evidence presented them. Nor do we believe

that the Court’s failure to recharge the jury on the Gov-

ernment’s burden of proof was plain error. While it

may be desirable for a Judge to restate the beyond a

reasonable doubt standard in an Allen charge, we doubt

that under the circumstances the jury was influenced to

disregard clear and explicit instructions on the prosecu-

tion’s burden of proof in the original charge.’ For similar

reasons, we reject Appellants’ argument that the Court's

statement that the jurors “sole interest is to seek the

truth from the evidence in the case’ somehow distorted

the jury’s function and diluted the Government’s burden

of proof. Accord, United States v. Lynch, 477 F. 2d at

925. We do not accept Appellants’ contention that the

Court singled out the minority jurors in its instructions

and placed them under undue pressure to conform their

views to those of the majority. Appellants concede that

this portion of the charge mirrors language approved in

United States v. Allen, 164 U.S. at 501. We determine

that the District Court’s instructions afforded the de-

fendants greater protection than did the charge in Allen

because the instructions called on all jurors favoring

conviction to rethink their positions, whether in the minor-

ity or majority. It would not be reasonable to conclude

that the effect of the Court’s language was to pressure the

minority into acceptance of majority rule, particularly

when read together with the instruction that “no jurur is

expected to yield a conscientious conviction he or she

may have as to the weight or effect of evidence.” Compare

United States v. Harris, 391 F. 2d at 356. Nor do we find

1 The Judge did, in fact, refer to the reasonable doubt stand-

ard when he urged the jurors favoring conviction to re-examine

the correctness of their positions.

ee ee =

AS

that there was any insult or threat implied in the Court’s

reference to the possibility of retrial before another jury,

as Appellants contend. On the contrary, the tenor of the

remarks was complimentary and supportive of the jury’s

efforts to reach a verdict. Appellant Cisternino claims

that the Court’s praise concerning both sides’ presentation

of evidence was, in actuality, “a thinly-veiled and insidious

comment on his failure to testify.” We do not accept that

interpretation. We find no indication in the record that

the language used by the Court was intended as a com-

ment on Cisternino’s failure to testify or that a jury

would naturally assume it to be so. See United States v.

Sawyer, 423 F. 2d 1335, 1340-41 (4th Cir. 1970). See also

United States v. Yamashita, 527 F. 2d 954, 956 (9th Cir.

1975); United States v. Banks, 426 F. 2d 292, 293 (6th

Cir. 1970) ; Davis v. United States, 357 F. 2d 438, 441 (5th

Cir. 1966).

As part of the original instructions to the jury, the

District Court made the following statement:

Every witness is presumed to speak the truth;

however, if you find the presumption of truthfulness

to be outweighed as to any witness, you will give the

testimony of that witness such credibility, if any,

as you may think it deserves.

On previous occasions this Court has condemned the use

of similar instructions in the exercise of our supervisory

powers. United States v. Maselli, 534 F. 2d 1197, 1202-03

(6th Cir. 1976) ; United States v. Stroble, 431 F. 2d 1273,

1278 (6th Cir. 1970). See also United States v. Griffin,

382 F. 2d 823, 827 (6th Cir. 1967). In those cases, how-

ever, we held that the giving of the instruction is not, in

the absence of an objection, plain error so as to require

reversal in all cases. United States v. Maselli, 534 F. 2d at

1203; United States v. Stroble, 431 F. 2d at 1278. See also

United States v. Griffin, 382 F. 2d at 828. No specific ob-

A6

jection was entered by defense counsel to the presumption-

of-truthfulness instruction. In Cupp v. Naughten, 414

US. at 149, the Supreme Court held that the giving of a

presumption-of-truthfulness instruction in a state crim-

inal proceeding was not a per se violation of due process.

The Supreme Court noted that the circuit courts which

have criticized the use of such an instruction did so in

the exercise of their supervisory powers and not as a

matter of constitutional law. Id. at 145-46. In determining

the cffect of the instruction on the defendant’s conviction,

the Supreme Court cautioned that the instruction should

be judged in the context of the overall charge. Id. at 147.

In upholding the instruction in Cupp, the Supreme Court

commented that the presumption-of-truthfulness instruc-

tion came in the midst of the general charge on credibility

where the jury was informed of various criteria for judg-

ing the credibility of witnesses. Id. at 149. In this case,

the presumption-of-truthfulness instruction was also de-

livered as part of the overall charge on credibility. We

conclude that the Court’s extensive instruction on factors

which would tend to discredit the testimony of witnesses,

including that of the chief prosecution witness, vitiated

what might otherwise have been plain error.” The record

also does not support Appellants’ allegation that the Gov-

ernment’s closing argument contained a personal endorse-

ment of Flott’s credibility. No objection was made and

the lengthy Government summation included a disclaimer

of any personal knowledge of the case on the part of

the prosecutors. The argument was not plain error. See

e.g., United States v. Phillips, 510 F. 2d 134, 136 (6th

Cir. 1975).

Appellant Cisternino raises three additional issues:

1) the Court’s instructions improperly amended the in-

2The District Judge did not have the benefit of United

States v. Maselli, swpra, when framing the instructions.

a ae 7 A

os ia Te ee ee eee -

A7

dictment to allow him to be convicted of a conspiracy

other than that described in count five of the indictment:

2) he was denied the effective assistance of counsel ‘i

cause of conflicts of interest which arose because his trial

attorney also represented two other defendants; and, 3)

there is insufficient evidence to support his conviction.

We have considered Cisternino’s arguments and find them

to be meritless. Cisternino was charged under count five

of the indictment of conspiring to possess stolen goods

with “Michael James Ryan aka Willie.” Cisternino was

not named as a party to the conspiracy outlined in count

three. Appellant argues that the Court constructively

amended the indictment when the Jurge combined in-

structions on both conspiracy counts with a general in-

struction on conspiracy. According to Appellant, the

confusion resulting from the Court’s instructions allowed

the jury to convict him of conspiring with someone other

than “Willie” the co-conspirator named in count five of

the indictment. If an indictment is amended during trial

a conviction on charges other than those found by the

grand jury violates the Fifth Amendment. See Stirone v.

United States, 361 U.S. 212 (1960). However, the indict-

ment in this case was not amended by the Court’s instruc-

tions. Although the methud of instruction lacked a degree

of clarity, whatever confusion may have been generated

by the general instruction on conspiracy was dispelled by

other portions of the charge wherein the Court carefully

distinguished the conspiracy counts, identified the persons

named in each count and related the elements of each

offense in terms of the defendants charged. Viewed in

their entirety, the instructions adequately apprised the

jury of the distinctions between the two conspiracy

A8

counts.” We also must consider the jury charge within the

context of the trial. United States v. Park, 421 U.S. 658,

674-75 (1975). The evidence against the Appellant at trial

went toward establishing a conspiracy between Cisternino

and a man named “Willie”. In light of the trial record,

there is no realistic possibility that Appellant was con-

victed of conspiring with someone other than “Willie”.

The conspiracy instructions do not constitute reversible

error.

We also conclude that Cisternino was not rendered

ineffective assistance of counsel simply because his trial

attorney also represented two of his co-defendants. To

satisfy the requirements of the Sixth Amendment, a

defendant must be represented by “counsel reasonably

likely to render and rendering reasonably effective assist-

ance.” Beasley v. United States, 491 F. 2d 687, 696 (6th

Cir. 1974). Where a conflict of interest is alleged, the

defendant must show that there was a conflict and that

he was prejudiced thereby. See United States v. Geor-

vassilis, 498 F.2d 883, 886 (6th Cir. 1974). The defendant

must suffer actual prejudice from the conflicting interests

— the mere possibility of prejudice is not sufficient to

overturn a conviction. Ray v. Rose, 535 F. 2d 966, 974

(6th Cir. 1976). Appellant has not demonstrated that

he was prejudiced by his attorney’s representation of two

other defendants. His assertions to the contrary appear

to stem more from the fact that he was tried jointly with

others named in the indictment than from any conflict of

’ The jury was also allowed to take the indictment into the

jury room. While this practice was criticized in United States

v. Maselli, 534 F. 2d at 1202, we have approved it in other cases.

See e.g., United States v. Russo, 480 F. 2d 1228, 1244 (6th Cir.

1973); Garner v. United States, 244 F. 2d 575 (6th Cir. 1957).

Cf. United States v. Baker, 418 F. 2d 851, 852-53 (6th Cir. 1969).

We note that no objection was made by defense counsel at the

time the indictment was submitted to the jury.

Ian tie Ang ts eo lil, agai

a .

Ag

interest on the part of counsel.‘ There is also a strong

indication of waiver in this case. See generally Glasser v.

United States, 315 U.S. 60, 71 (1941). The District Judge

held a hearing before trial with defendants and defense

counsel present to raise the possibility of conflicts of in-

terests arising due to the attorneys’ multiple representa-

tion of defendants. At the hearing, Appellant Cisternino

was warned of the possibility of a conflict of interest and

expressly waived separate counsel. While the pre-trial

hearing may not have sufficed if it became apparent at

trial that there was an actual conflict of interest, see United

States v. Gaines, 529 F. 2d 1038, 1044 (7th Cir. 1976),

that occasion did not arise.” A review of the record dis-

closes that Cisternino’s trial attorney rendered reasonably

effective assistance. Viewed in a light most favorable to

the Government, United States v. Hearn, 496 F. 2d 236,

237 (6th Cir. 1974), the record also reveals there was

sufficient evidence to sustain Cisternino’s conviction.

Finally, Appellants allege that the trial court abridged

their confrontation rights under the Sixth Amendment by

impermissibly limiting the cross-examination of Edmund

Eugene Flott, the prosecution’s key witness. Flott’s testi-

mony was central to the Government’s case and defense

counsel vigorously attacked his credibility during cross-

examination and final argument. On the stand, Flott ad-

mitted inter alia that he had an extensive criminal record

including convictions for armed robbery, bank robbery,

* Appellant did not raise improper joinder as an issue on

appeal.

*We do not lightly indulge in second guessing the trial

strategy of defense counsel and a trial court need not speculate

on all the myriad possibilities of conflict which may arise be-

tween a defendant and his attorney during trial. Yet if a real

possibility of conflict arises, even during trial, the Court has a

responsibility to inform the defendant of the risks involved and

remind him that he has the option of changing counsel. See gen-

erally United States v. Gaines, 529 F. 2d at 1044; United States

v. Foster, 469 F. 2d 1, 5 (1st Cir. 1972).

Al0

receipt of stolen property and escape and that he had

been imprisoned nearly half his life; that while in prison

in 1963 he had become an FBI informant; that he con-

tinued as an informant for four years following his release

from prison and was paid between $2,000 and $3,000 for

information; that he agreed to testify in this case only

after his FBI contact informed him that the Bureau had

evidence of his complicity in the crime; that he had not

been charged with the crime even though he had admitted

guilt; that he had agreed to make a statement on condition

that he and his family be relocated and that relocation

had occurred; that the Governmei:t was paying him $1,060

in monthly subsistence payments; that he had threatened

at least one of the defendants; and that he would do almost

anything to keep out of jail. He also testified that he had

failed to report to the FBI all criminal activity of which

he was aware, particularly if he or one of his close as-

sociates was involved. When defense counsel attempted

to elicit details of his participation in unreported criminal

activity, Flott refused to answer and invoked his Fifth

Amendment privilege. The following colloquy then took

place:

PROSECUTOR: Objection.

THE COURT: Approach the bench. (Bench

conference ensued on the record as follows: )

DEFENSE COUNSEL: These things are all

mentioned and involved, and I think it goes to the

credibility of this man and the reasons why he is

testifying the way he is.

THE COURT: There is ample ground for you

to attack his credibility in the proper form. I will

sustain the objection. Shall we proceed?

DEFENSE COUNSEL: SoI don’t have to come

up again, you are saying I can’t ask him about criminal

activity at all?

oe

All

THE COURT: No. All I said to you was thet

the objection was sustained, and I have directed you

to proceed in a proper manner. Let’s go ahead please.

After resuming cross-examination, counsel once again

questioned F lott about his involvement in unreported crim-

inal activity and the Covrt sustained the prosecutor’s

objection. Appellants contend that they were deprived

of their Sixth Amendment right of confrontation because

the Court improperly curtailed cross-examination. They

argue that Flott’s disclosure of unreported criminal ac-

tivity waived his Fifth Amendment privilege as to the

details of his participation.®

It is within the sound discretion of the trial court to

limit the scope of cross-examination. See e.g., United

States v. Duhart, 511 F. 2d 7, 9 (6th Cir. 1975). In exer-

cising its discretion, the court must be mindful of both

the defendant’s Sixth Amendment right of confrontation

and the witness’s Fifth Amendment privilege against self-

incrimination. The court may violate the confrontation

clause if it prevents the defense from placing facts before

a jury from which bias, prejudice or lack of credibility of

a prosecution witness may be inferred. Davis v. Alaska,

415 US. 308 (1974); Smith v. Illinois, 390 U.S. 129

(1968); Alford v. United States, 282 U.S. 687 (1937).

However, the defendant’s right to delve into facts tend-

ing to discredit a prosecution witness cannot overcome

the witness’s privilege against self-incrimination, if prop-

erly invoked. See Alford v. United States, 282 U.S. at 694.

We find that Flott properly invoked the Fifth Amendment

concerning details of his participation in criminal activity

® We need not discuss Appellants’ assertion that the Court

should have allowed counsel to question the witness further ou+

of hearing of the jury to establish the parameters of his assertion

of privilege. The record discloses that the trial court’s rulings

were limited to the precise questions asked by counsel and did

not amount to a “blanket prohibition” of questions concerning

Flott’s criminal activity, as Appellants suggest.

Al2

which had not been reported to the authorities. Although

disclosure of an incriminating fact generally waives the

privilege as to details, see Rogers v. United States, 340

US. 367, 373 (1950), waiver does not occur where further

disclosure carries a risk of incrimination beyond that

raised by previous testimony. See United States v. Seavers,

472 F. 2d 607, 610-11 (6th Cir. 1973); In re Master Key

Litigation, 507 F. 2d 292, 294 (9th Cir. 1974). Since dis-

closure of the details of Flott’s participation in unreported

criminal activity would present a real and appreciable

danger of criminal prosecution not raised by his testimony

on direct, the Court was not in error in upholding his

right to refuse to respond. Nor do we believe that the

Court’s rulings deprived Appellants of their confrontation

rights under the Sixth Amendment. When a prosecution

witness refuses to submit to cross-examination, it may

be necessary for the trial court to strike all or part of his

testimony. See United States v. Stephens, 492 F. 2d at

1374-75; United States v. Cardillo, 316 F. 2d 606, 610-11

(2d Cir. 1963). A defendant’s rights do not bar the ad-

mission of the witness’s testimony against him where the

questions concern subject matter which is either collateral

or cumulative and where the cross-examination is directed

at the witness’s general credibility rather than toward

matters relating to the specific events of the crime charged.

See United States v. Garrett, No. 76-1108 at 5 (6th Cir.

September 29, 1976). In this instance, defense counsel

was seeking evidence which would be both collateral

and cumulative. Testimony concerning F'ott’s participa-

tion in criminal activity unrelated to the crime with which

defendants were charged would be purely collateral to

the issues at trial. If the purpose of the examination was

to cast doubt on Flott’s credibility, the questions were

cumulative. The testimony provided counsel with an

ample basis to effectively attack Flott’s character and his

motives for testifying for the prosecution. See United

see YF

Al3

States v. Stephens, 492 F.2d at 1375. See also United

States v. LaSorsa, 480 F. 2d 522, 529 (2d Cir. 1973). We

fail tg see how testimony concerning crimes which were

not reported to the FBI would elucidate further Flott’s

relationship with the Government, as Appellants contend.

Under the circumstances, we must conclude that the jury

had sufficient information upon which to make a dis-

criminating appraisal of the witness’s motives and bias

without granting the defense access to highly incriminat-

ing evidence on crimes unrelated to those charged in the

indictment. See United States v. Baker, 494 F. 2d 1262,

1267 (6th Cir. 1974). Appellants have made other argu-

ments which we have considered and find to be without

merit. The judgment of the District Court is affirmed.

Order of the United States Court of Appeals for

the Sixth Circuit Denying Petition for Rehearing

(Filed August 3, 1977)

No. 76-1580

UNITED STATES COURT OF APPEA™S

For THE SrxtH Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PASQUALE J. CISTERNINO,

Defendant-Appellant.

Before: Puitirps and CeLesrezze and Live y, Cir-

cuit Judges.

Upon due consideration of Appellant’s Petition for

Rehearing, it is ORDERED that said Petition be, and it

hereby is, denied.

ENTERED BY ORDER OF THE COURT.

/s/ Joun P. HEHMAN

Clerk