Petition — Ellis v. United States

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Supreme Court, U. &

FILED

JUN 8g 1979

IN THE

SUPREME COURT OF THE UNITED SPAHES °° cr

October Term, 1978

No. _4#8- 1 837

JOHN ELLIs, JAMES CARTY, JAMES CURLEY, WILLIAM JONES,

JAMES CROWN, ROSEBOROUGH MCMILLAN, Petitioners

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Richard A. Sprague

Edward H. Rubenstone

Counsel for Petitioners

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, PA 19103

(215) 561-7681

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA. PA. 19107 (215) 561-4058

sian ii sca alailcailia

TABLE OF CONTENTS

Page

EE AR OER te CCE 2

Jurisdiction ... Perec eee rere ee eee eee ree 2

NaN as wn pelts 6 3

Constitutional and Statutory Provisions Involved 4

MS ec gb pebceesabebe ones 7

Reasons for Granting the Writ ................... 9

Point I:

No Evidence, Either Direct or Circumstantial,

of the Two Primary Elements Required to Es-

tablish a Conspiracy: A Criminal Agreement

Among All Petitioners and a Culpable State of

Mind as to Each Petitioner, Was Presented in

re es rs as pause h wae 12

Point II:

The Failure of the Government to Prove the

Existence of a Single Conspiracy Among All

Petitioners and the Fatal Variance Which Re-

sulted, Coupled With the Third Circuit’s Fail-

ure to Employ Proper Standards of Review on

Appeal and Its Disregard of This Court’s Prior

Decisions in the Criminal Conspiracy Area,

Substantially Prejudiced the Trial and Appel-

8 ae 23

Point III:

In Granting Immunity to Two Prosecution

Witnesses Upon Commencement of Their

Cross-Examination Testimony, the Govern-

ment Violated Both the Provisions and Pur-

pose of the Immunity Statute and Employed a

Procedure Which Severely Prejudiced Peti-

tomers Ment te & Fair Trial .........°......%. 31

TABLE OF CONTENTS Continued

Page

A. The Grant of Immunity After Completion

of the Direct Testimony of Two Govern-

ment Witnesses, Solely for Cross-

Examination is Violative of the Provisions

and Purposes of the Federal Immunity

ID oe ee oe eve eek wauae ees 31

B. The Procedure Employed by the Govern-

ment in its Grants of Immunity to Two

Government Witnesses Solely for Cross-

Examination Purposes Substantially Prej-

udiced Petitioners’ Right to a Fair Trial .. 35

Cee Cd dean sae band Ouse ORE R NE te 8089 38

Certificate Of ServiCe 0... cccccc cscs ccsesecveens 39

Appendix

A—(Opinion of United States Court of Appeals

for the Third Circuit) ..........ccceeee. A-1

B—(Judgment of United States Court of Ap-

peals for the Third Circuit) ............ A-23

C—(Order Denying Petition for Rehearing in

AS... icon ckabds ieee ves secant thoa ees A-27

D—(Order Extending Time to File Petition for

Writ Of CertiOPara) oi cc ccccccecenccces A-31

TABLE OF CITATIONS

Cases: Page

Anderson v. United States, 417 U.S. 211 (1974) . 10

Berger v. United States, 295 U.S. 78 (1935) ..... 23

Blumenthal v. United States, 332 U.S. 539(1947) 28

Brooks v. were. 164 F.2d 142 (5th Cir.

SPEED: nie kk wise s ck cena naka ek 29

: rte ete e ee eee eee e eee e eee ee es

Daily v. United States, 282 F.2d 818 (9th Cir.

I. aah ica esh aerial ababaxe kena 29

Direct Sales Co. v! United States, 319 U.S. 703

COE enna es cidbvnia veces cwaevindecdvsicnes 12, 22

Ellis v. United States, 416 F.2d 791 (D.C. Cir.

naiarcs ates TN RE Pee ge See 33

Glassner v. United Slates. 315 U.S. 60 (1942) 12, 20

lannelli v. United Stdtes, 420 U.S. 770 (1975) ... 12

In re Daley, 549 F.2d 469 (7th Cir.), cert denied

re Wey GU IE ans oT exe eee bee, 34

Johnson v. Florida, 391 U.S. 596 (1968) ......... 10

Jolley v. United States, 232 F.2d 83 (5th Cir. 1956) 29

Kastigar v. United States, 406 U.S. 441 (1972) .. 34

Kopald-Quinn & Co. v. United States, 101 F.2d 628

(Sth Cir.), cert. denied sub nom. Ricebaum v.

United States, 307 U.S. 764 (1939) ....... 23-24

Kotteakos v. United States, 328 U.S. 750 (1946) . 11,

24-30

Krulewitch v. United States, 336 U.S. 440 (1949) 11,

26, 27

Nye & Nissen v. United States, 336 U.S. 613

CREE hn pak X05 6 kak Sh a ab obese aus 10, 27

TABLE OF CITATIONS (Continued)

Cases: Page

Rocha v. United States, 288 F.2d 545 (9th Cir.),

cert. denied 366 U.S. 948 (1961) ............ 29

Shannabarger v. United States, 99 F.2d 957 (8th

Sy CS ae cWik Sida bis whe deeb e wala baeR NGS 19

Thompson v. Louisville, 362 U.S. 199 (1960) .... 10

United States v. Barrow, 363 F.2d 62 (3d Cir.

1966), cert. denied 385 U.S. 1001 (1967) .... 20

United States v. Borelli, 336 F.2d 376 (2d Cir.

1964) cert. denied sub nom. Cinquegrano v.

United States, 379 U.S. 960 (1965) .......... 19

United States v. Bryan, 339 U.S. 323(1950) .... 34

United States v. Bufalino, 285 F.2d 408 (2d Cir.

BD iin cee be ca Paw REE woe i ws 19, 28

United States v. Cruz, 536 F.2d 1264 (9th Cir.

SEs cacuuGecasucatnecen okie ee cetvake 16

United States v. Fellabaum, 408 F.2d 220 (7th

Cir.), cert. denied sub nom. Pyne v. United

SURG, Te Wu, Cn SS ka ces eawcivcss 19

United States v. Leonard, 494 F.2d 955 (D.C. Cir.

NS Ns i eas be ea eas Sew ao 33

United States v. Lewis, 456 F.2d 404 (3d Cir.

rae ne ee ee eyes 32

United States v. Morado, 454 F.2d 167 (5th Cir.),

cert. denied 406 U.S. 917 (1972) ........ 18, 28

United States v. Nixon, 418 U.S. 683 (1974) .... 16

United States v. Rosenblatt, 554 F.2d 36 (2d Cir.

DEE “ o ctach aires KA Cek Ke koa ER ES bans 12

United States v. Sperling, 506 F.2d 1323 (2d Cir.

1974), cert. denied 420 U.S. 962 (1975) ..... 20

TABLE OF CITATIONS (Continued)

Cases: Page

United States v. Wayman, 510 F.2d 1020 (5th

Cir.), cert. denied sub nom. Moore v. United

_ States, 423 U.S. 846 (1975) ..........00.. ee 29

United States v. Weber, 437 F.2d 327 (3d Cir.

1970), cert. denied 402 U.S. 932 (1971) ..... 16

Constitution and Statutes:

United States Constitution:

Fifth Amendment ............... 32, 34, 37

Sixth Amendment ............ +. 3, 4, 32, 33

18 U6). Becta G4T ae 3, 4, 8, 18, 21

Sar a OE PEE Wacos ss owes ch evan ouce 4,8

BD 350. BCCI TE oie ss iiccS se Cvwccinecc’s 3

REP Sea I IE 8 id ns dane nwevabuaess 5

1G U.S.C. Section GOOG ou esse cedecees 5, 31

Miscellaneous:

U.S. Code Congressional & Administrative

PROVE PRUITER, i ohiccv coved pene ales reus 35

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

JOHN ELLIs, JAMES CARTY, JAMES CURLEY, WILLIAM JONES,

JAMES CROWN, ROSEBOROUGH MCMILLAN,

Petitioners

VU.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Petitioners above named respectfully pray that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Third Circuit entered in this case on March 31, 1979.

]

OPINION BELOW

The Opinion of the United States Court of Appeals

for the Third Circuit, dated March’ 13, 1979, is not yet

reported. A copy of that Opinion is attached hereto as

Appendix A.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the Third Circuit (App. B, infra.) was entered

on March 13, 1979. A Petition for Rehearing in Banc

was timely filed and denied on April 9, 1979. (App. C,

infra.) On April 27, 1979, upon consideration of peti-

tioners’ Application for Extension of Time to File Peti-

tion for Writ of Certiorari, Mr. Justice Brennan ex-

tended the time for filing the instant Petition to June 8,

1979. (App. D, infra.) This Court’s jurisdiction is in-

voked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether, in a case alleging a single criminal

conspiracy, where the only proof of conspiratorial con-

duct consists of evidence that defendant-police officers

were lawfully engaged in the performance of similar,

assigned duties in connection with an official criminal

investigation, and where there was no evidence of an

agreement among all defendants or of a conspiratorial

state of mind to violate the federal civil rights of wit-

nesses or suspects, the evidence was sufficient to sus-

tain conspiracy convictions under 18 U.S.C. §241?

2. Whether, where the government’s evidence

demonstrated, at best, the existence of multiple con-

spiracies, resulting in a fatal variance between the

proof at trial and the single conspiracy charged in the

‘indictment, and where the Court of Appeals ignored

this Court’s prior conspiracy decisions by employing

improper standards of review, petitioners suffered sub-

stantial prejudice at both the trial and appellate levels?

3. Whether the government’s grant of immunity to

two prosecution witnesses upon completion of their di-

rect testimony and during cross examination, not to

elicit forthcoming testimony but solely to protect the

direct testimony of those witnesses, violated the fed-

eral immunity statute, 18 U.S.C. §6001, et seq., and

prejudiced petitioners’ sixth amendment rights to a

fair trial and to confront witnesses against them?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution:

Amendment VI:

In all criminal prosecutions, the accused shall

enjoy a right to a speedy and public trial, by an

impartial jury. . . and. . . to be confronted with

the witnesses against him... .

United States Code, Title 18:

§241. Conspiracy against rights of citizens

If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise

or enjoyment of any right or privilege secured to him by

the Constitution or laws of the United States, or be-

cause of his having so exercised the same; or

If two or more persons go in disguise on the high-

way, or on the premises of another, with intent to pre-

vent or hinder his free exercise or enjoyment of any

right or privilege so secured—

They shall be fined not more than $10,000 or im-

prisoned not more than ten years, or both; and if death

results, they shall be subject to imprisonment for any

term of years or for life.

§242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordi-

nance, regulation, or custom, willfully subjects any in-

habitant of any State, Territory, or District to the depri-

vation of any rights, privileges, or immunities secured

or protected by the Constitution or laws of the United

States, or to different punishments, pains, or penalties,

on account of such inhabitant being an alien, or by

reason of his color, or race, than are prescribed for the

punishment of citizens, shall be fined not more than

$1,000 or imprisoned not more than one year, or both;

and if death results shall be subject to imprisonment

for any term of years or for life.

$6002. Immunity generally

Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or pro-

vide other information in a proceeding before or ancil-

lary to—

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint commit-

tee of the two Houses, or a committee or a sub-

committee of either House,

and the person presiding over the proceeding com-

municates to the witness an order issued under this

part, the witness may not refuse to comply with the

order on the basis of his privilege against self-

incrimination; but no testimony or other information

compelled under the order (or any information directly

or indirectly derived from such testimony or other in-

formation) may be used against the witness in any

criminal case, except a prosecution for perjury, giving

a false statement, or otherwise failing to comply with

the orcer.

$6L 93. Court and grand jury proceedings

(a) In the case of any individual who has been or

may be called to testify or provide other information at

any proceeding before or ancillary to a court of the

United States or a grand jury of the United States, the

United States district court for the judicial district in

which the proceeding is or may be held shall issue, in

accordance with subsection (b) of this section, upon

the request of the United States attorney for such dis-

trict, an order requiring such individual to give tes-

timony or provide other information which he refuses

to give or provide on the basis of his privilege against

self-incrimination, such order to become effective as

provided in section 6002 of this part. |

(b) A United States attorney may, with the ap-

proval of the Attorney General, the Deputy Attorney

General, or any designated Assistant Attorney General,

request an order under subsection (a) of this section

when in his judgment—

(1) the testimony or other information from

such individual may be necessary to the public

interest; and

(2) such individual has refused or is likely to

refuse to testify or provide other information on the

hasis of his privilege against self-incrimination.

STATEMENT OF THE CASE

At approximately 3:30 A.M. on October 5, 1975,

one or more homemade firebombs were thrown at and

into the home of an Hispanic-American family named

Santiago in Philadelphia, Pennsylvania. Five persons,

including a mother and three of her children, were

killed. Each of the petitioners, all of whom were homi-

cide detectives in the Philadelphia Police Department,

along with numerous other detectives and police

officers, were immediately assigned to investigate

the murders. .

Within an hour of the firebombing, and based upon

the statement of an eyewitness, the police arrested one

Robert “Reds” Wilkinson. Over the next few hours, and

again on the basis of information developed by the

police investigation, seven other persons, all neighbors

of the Santiagos, were taken to police headquarters for

interrogation. Two of those arrested, Wilkinson and

Ronald Hanley, confessed to the firebombing and were

subsequently convicted. Wilkinson’s conviction was

later overturned when the eyewitness recanted on his

testimony and upon receipt of a confession to the fire-

bombing by David McGinnis, one of the persons ques-

tioned by the police on October 5 who, at that time,

denied any involvement. In his confession in March of

1976, McGinnis stated that he firebombed the Santiago

home with Hanley, but denied any involvement in the

firebombing by Wilkinson. '

Each of the eight persons who were taken into cus-

tody following the firebombing subsequently alleged

that they were beaten, harrassed, and threatened dur-

ing the course of the October 5, 1975 interrogation by

1, McGinnis entered a plea of guilty to tederal civil rights viola-

tions arising out of the firebombing and was sentenced to 22 years

imprisonment. Hanley was convicted.on federal charges arising out

of the firebombing and received a sentence of life imprisonment

plus 35 years, which conviction and sentence are presently under

appeal,

various homicide detectives, including the petitioners

herein. Thereupon, the United States government

charged all of the petitioners with one count of conspi-

racy to deprive the named individuals of their federal

civil rights in violation of Title 18, United States Code,

section 241. This same indictment also charged vari-

ous of the petitioners with substantive violations of the

civil rights of these same persons under Title 18,

United States Code, section 242. Each of the peti-

tioners was charged in at least one of the substantive

counts.”

After fourteen (14) days of trial and almost 24

hours of deliberation, the jury announced that it was

unable to render a verdict as to Counts II and III. As to

Count IV, the substantive count involving petitioners

Carty and McMillan, the jury returned a verdict of not

guilty. Only as to Count I, the conspiracy count, did the

jury find all of the petitioners guilty as charged.

After disposition of post-triaMmotions, petitioners

were each sentenced to a term of fifteen (15) months

imprisonment.

An appeal was timely filed with the United States

Court of Appeals for the Third Circuit, and, on March

13, 1979, the convictions and sentences were affirmed.

A Petition for Rehearing In Banc was subsequently de-

nied, and the instant Petition for a Writ of Certiorari

followed.

2. Count II charged petitioners Ellis, Carty, and Curley with

violating the rights of Ronald Hanley; Count III charged petitioners

Crown, Jones, and McMillan with violating the rights of Robert

Wilkinson; and Count IV charged petitioners Carty and McMillan

with violating the rights of David McGinnis.

REASONS FOR GRANTING THE WRIT

The petitioners — six Philadelphia police detec-

tives — who were convicted of conspiracy in this case

were, throughout the period in question, working to-

gether in their official capacities to investigate and

solve multiple firebombing murders. Their associa-

tions with each other and the similarity in their

activities were both lawful and reasonable, as distin-

guished from those situations where alleged con-

spirators have no reason to associate “but for” unlaw-

ful purposes. In such circumstances, the need to

meticulously scrutinize the record, given the distinct

possibility that the guilt of defendants will be deter-

mined, not on an individual basis, but on the basis of

proof of lawful common conduct and association, is

greatly increased. Yet, both the verdict and the appel-

late decision below permit a finder of fact to infer the

existence of a single conspiratorial agreement solely

from evidence that the defendant-police officers were

jointly engaged in the proper execution of their duties.

As a result, this petition raises substantial ques-

tions in the ever troublesome area of criminal conspi-

racy in that the convictions of petitioners under a one

count charge of conspiracy, on the basis of the unsub-

stantiated and improper evidence in this case, and the

subsequent affirmance of those convictions by the

Third Circuit, demonstrate the substantial degree of

uncertainty which exists among the lower courts in

the conspiracy area and the gross inconsistencies and

inequities which have thereby resulted. It is apparent

that little attention is being paid by either courts or

prosecutors to Mr. Justice Frankfurter’s admonition

that:

* . , the concept of conspiracy is not an invitation

to circumvent the safeguards in the prosecution of

crime which are the special boast of our demo-

cratic society by making it a device to establish

guilt, not on the basis of personal responsibility,

but by association. .. .” Nye & Nissen v. United

States, 336 U.S. 613, 626 (1949) (dissenting opin-

ion).

The instant decision has effectively resulted in the

abolition of those principal elements which serve to

distinguish the crime of conspiracy from substantive

offenses: the existence of a conspiratorial agreement

and a culpable state of mind, by permitting a jury to

infer the presence of these elements solely from con-

duct which is neither culpable nor incriminatory.

In complete disregard of the basic tenet that a

court must demand the highest standard of proof in

criminal conspiracy cases based on circumstantial

evidence, this case allows convictions to stand in the

absence of such proof and solely on the basis of alleged,

subsequent unlawful conduct by some individuals

who, aside from their occupations, are not shown to

have had any connection with each other. *

Additionally, as a result of the government’s deci-

sion to prosecute on a single conspiracy theory, evi-

dence highly prejudicial to petitioners was erroneously

introduced at trial, a fatal variance occurred, and peti-

tioners were clearly denied substantial rights. The trial

errors were further compounded by the failure of the

3. Although this Court has generally refused to grant petitions

for writs of certiorari, in cases raising sufficiency of evidence ques-

tions, it is submitted that the government's unjustifiable and im-

proper employment of a criminal conspiracy statute in the prosecu-

tion of police officers in the instant case, and the impact which the

decision of the Court of Appeals in this matter will surely have both

on these defendants as well as on police conduct throughout the

Nation, require careful consideration by this Court. This Court it-

self has, on numerous occasions, recognized that “a claim that a

conviction is based on a record lacking any evidence relevant to

crucial elements of the offense is a claim with serious constitu-

tional overtones.’ Anderson v. United States, 417 U.S. 211,

223n. 12 (1974); Johnson v. Florida, 391 U.S. 596 (1968);

Thompson v. Louisville, 362 U.S. 199 (1960).

Court of Appeals to review the record with the neces-

sary scrutiny and by the appellate court’s formulation

and employment of a single conspiracy theory which

was so overly broad that it effectively obviated the

preper standards of review established by this Court in

the criminal conspiracy area. Under the principles es-

tablished by this Court in Kotteakos v. United States,

328 U.S. 750 (1946), reversal of the convictions is re-

quired.

The indivious impact which the rulings will have

upon future conspiracy prosecutions is patently obvi-

ous. As such, this case illustrates, in the most literal

sense, the dangers inherent in conspiracy prosecutions

which Mr. Justice Jackson warned against in

Krulewitch v. United States, 336 U.S. 440, 449 (1949),

in that no evidence, either direct or circumstantial,

was presented to establish either the necessary linkage

or the requisite state of mind sufficient to sustain a

criminal conspiracy conviction. For this reason, review

by this Court is imperative.

Finally, as discussed at Point III, infra, the gov-

ernment, by granting immunity to government wit-

nesses solely for cross examination purposes upon

completion of their direct testimony, patently violated

the provisions of the federal immunity statutes by em-

ploying its immunity powers to protect prior testimony

and not, as required by statute, to obtain testimony or

information in which it had any interest from these

witnesses. In doing so, the government substantially

prejudiced the rights of petitioners to fully and properly

cross examine these witnesses and permitted the jury

to apply varying standards of credibility to the direct

and cross examination testimony of these same wit-

nesses. For this additional reason, review by this Court

is required.

I. NO EVIDENCE, EITHER DIRECT OR CIR-

CUMSTANTIAL, OF THE TWO PRIMARY ELE-

MENTS REQUIRED TO ESTABLISH A CONSPI-

RACY: A CRIMINAL AGREEMENT AMONG ALL

PETITIONERS AND A CULPABLE STATE OF

MIND AS TO EACH PETITIONER, WAS PRE-

SENTED IN THIS CASE.

The essence of the crime of conspiracy is the crim-

inal agreement itself. Without an agreement, there is

no conspiracy, although, absent direct evidence of

such an agreement, the jury is permitted to infer the

unlawful agreement from the circumstances of the

case. E.g., Glasser v. United States, 315 U.S. 60, 80

(1942); United States v. Rosenblatt, 554 F.2d 36 (2d

Cir. 1977). However, this Court has emphasized re-

peatedly that similar or common actions or aiding and

abetting are not the equivalent of an unlawful agree-

ment and do not necessarily constitute conspiratorial

criminal agreements. See, e.g., lannelli v. United

States, 420 U.S. 770 (1975); Direct Sales Co. v. United

States, 319 U.S. 703 (1943). In this case, the cir-

cumstantial evidence presented by the government to

support the charged conspiracy indicated nothing

more than that the defendant-police officers, as a

group, were engaged in carrying out their prescribed

duties and lawful functions in the course of their em-

ployment. The non-incriminatory nature of this proof is

self-evident; the common nature of the overall conduct

of the defendants arose as a matter of course, out of

their professional responsibilities, and no additional

evidence whatsoever provided the quantum of proof

necessary to establish the existence of the requisite

agreement. Absent such independent proof of an

agreement, the convictions cannot stand.

All of the petitioner-defendants were Philadelphia

homicide detectives and were members of the same

detective squad. All of them were assigned by their

superior officers to investigate the Santiago fire-

bombing, (A. 2000a) and each of them, at different

times during the first few hours of the investigation,

commenced their activities on this investigation. All of

them, in the normal course of their duties, were ulti-

mately present at Philadelphia police headquarters

and, again at the direction of their superiors, each of

the defendants participated in the interrogation of wit-

nesses to and suspects in the firebombing incident.

Each was present at police headquarters for substan-

tial periods of time throughout the 18 hour period in

question, and each of the defendants, understandably

and pursuant to departmental policy, was attempting

to solve the crime by obtaining statements and evi-

dence. During the course of the investigation, and

again in accord with acceptable police practices and

departmental requirements, each of the defendants re-

ported the results of their individual activities to their

superiors and to the other detectives then working on

the case. (A. 2012a-2013a)

All of the above facts are apparent from the record

and, in their totality, serve to demonstrate beyond

question, a common course of conduct by the defen-

dants throughout the period in question. As a result the

primary elements from which a jury, in the typical

criminal conspiracy case, would infer the existence of

the requisite agreement: time, place, association, simi-

larity of activities and interests, and commonality of

purpose, are each present in this case. However, the

presence of these various elements, in this instance,

results not from any conspiratorial scheme or design or

concerted action, and not from any unlawful gathering

or suspicious conduct, but, to the contrary, arises di-

rectly and naturally out of the professional duties and

responsibilities of each of the defendants. Thus, such

proof cannot properly be employed to establish the exis-

tence of a conspiratorial agreement. In the absence of

additional proof upon which an inference of an agree-

ment can be premised, it is clear that a guilty verdict

cannot be sustained.

The government itself fully recognized this fatal

absence of proof in its case. Having failed to obtain

convictions on the substantive counts of the indictment,

and recognizing that it could no longer rely upon the

prosecutor’s argument at trial that the “only issue in

this case” is whether or not the beatings described by

the Government witnesses actually took place,‘ the

government, on appeal, fashioned a theory out of the

mass of conflicting evidence presented at trial by its

own witnesses to attempt to demonstrate the linkage

necessary to establish the requisite agreement, The

prosecution thereupon contended:

“The common purpose and plan linking all six

defendants to the conspiracy in the instant case

was the intent to solve the same investigation

through whatever means were necessary, includ-

ing the violation of suspects’ and witnesses’ con-

stitutional rights.” (Appellee’s Brief, at 2)

The Court of Appeals embraced this ingenious formu-

lation wholeheartedly despite the total absence of evi-

dence in the record from which an agreement could be

inferred. After engaging in a brief discussion of burden

of proof in this area, the Court stated:

“Applying that measure of the sufficiency of cir-

cumstantial evidence of a conspiracy, there is

more than ample evidence in this record of a com-

4. The full quotation from the opening statement of the prose

cutor reads:

“This is a case of did it happen, did the beatings alleged in the

indictment occur?

“As the case progresses the Government will establish for

you that that is the only issue in this case, Did the beatings

described by the Government witnesses occur or didn't they?

There is no other issue left in this case.” (A, 12a)

mon scheme or plan to solve a crime to the satis-

faction of the conspirators by whatever means

were necessary, including the violation of sus-

pects’ and witnesses’ constitutional rights. All

were engaged in a common endeavor. Each, the

jury could find, beat one or more of the witnesses or

suspects. Some moved from victim to victim. The

false confession coerced from Wilkinson was tai-

lored to fit the misinformation received from Gar-

cia, and the false confession coerced from Hanley

was tailored to fit that previously coerced from Wil-

kinson. All the victims were kept at the PAB until a

“solution” satisfying the common purpose was ob-

tained by virtue of Hanley’s confession. When that

was accomplished McCandless was released, al-

though he had given a coerced confession inconsis-

tent with Hanley’s. The statements made by some

participants disclosed knowledge of beatings by

others, and thus disclosed that the conspirators

were meeting together outside the interrogation

rooms.” (App. A, at 12)

It then concluded that “|t]he jury could, and did, find

that the defendants were united in a common scheme

of obtaining a satisfactory solution to the Santiago slay-

ings by the illegal means of depriving suspects and

witnesses of their Constitutional rights.” (App. A, at

12). Once again, however, it can be safely stated that

the government's position, as adopted by the Circuit

Court, cannot be supported by the evidence at trial or

the established law in this area.

Admittedly, the defendants were engaged in a

common endeavor; their positions as police officers

demanded that they act in cooperation with each other

and with other persons involved in the investigation

and that they engage in similar, prescribed activities

in their attempts to solve the crime. Furthermore, for

the purpose of this discussion, and despite the failure of

the jury to find that any of the defendants beat or ver-

bally harassed one or more of the witnesses, it may also

be assumed that some of the defendants were aware of

or participated in one or more beatings. However, none

of these facts established, with any degree of proof, that

an overall agreement to deprive individuals of their civil

rights, involving each of the defendants, ever came

into existence, either expressly or by implication. °

For example, detectives Crown and Jones were clos-

eted with Wilkinson from approximately 5:30 A.M. to

3 P.M. on the day in question (A.2668a, 2676a, 2698a).

Even assuming, arguendo, that they physically abused

Wilkinson during this period and, according to the prose-

cution’s testimony, permitted or were aware that de-

5. Once it is recognized that none of the “common” activities

or circumstances described in the preceding paragraphs are proba-

tive of the existence of a conspiracy among all defendants, addi-

tional, independent, non-hearsay evidence of this fact is required.

However, much of the evidence introduced at trial and relied upon

by the Court of Appeals to support its finding that “ample evidence”

of the conspiracy was presented is patently inadmissible. Thus, tes-

timony as to discussions of the case among unknown detectives

which were overheard by one of the government's witnesses, as

well as testimony as to numerous statements which were allegedly

made by some police officers and which purportedly “disclosed

knowledge of beatings by others,” ‘App. A. at 12) is clearly inad-

missible for the purpose of establishing the existence of the requi-

site conspiratorial agreement. Yet, the appellate court’s Opinion

specifically rests, in part, on these facts, in determining that the

government's proof of a conspiracy was sufficient. The law, how-

ever, is clear that independent proof of the existence of the conspi-

racy must be presented prior to the receipt of such hearsay evi-

dence. E.g., United States v. Cruz, 536 F.2d 1264 (9th Cir. 1976);

United States v. Weber, 437 F.2d 327 (3d Cir. 1970), cert. denied,

402 U.S. 932 (1971); see United States v. Nixon, 418 U.S. 683, 701

(1974) (dicta). Accordingly, the use of statements of unidentified

persons, who may or may not be co-conspirators, and who were

never identified during the trial, to buttress the government's con-

spiracy contentions, was clearly improper.

tective McMillan, at one point, struck Wilkinson, not

one shred of evidence in the record supports or even

suggests that Crown or Jones were involved in or even

aware of either the actions of any of the other defen-

dants or the treatment of any other witnesses or sus-

pects, at any point in time whatsoever. The further fact

that the confession obtained from Wilkinson by Crown

and Jones was subsequently delivered to defendants’

superior officers and/or disseminated to other officers

working on the case (A.2012a-2013a) and was pre-

sumably then employed by these other defendants, to

use the language of the Court of Appeals, in tailoring

subsequent confessions, again in no way links Crown

or Jones to any alleged criminal activities of other de-

tectives working on the case.‘

Similarly, detective Curley, on the basis of witness

Hanley’s testimony, was present when Hanley was

beaten (A. 700a-702a) and, according to other testimony ,

made certain intimidating statements to Wilkinson’s

wife, Christine. (A.574a) But the record is barren of

any suggestion that Curley was involved in the interro-

gation of any other witness or that he physically or

mentally abused any suspect. Indeed, this pattern re-

peats itself throughout this case and as to each of the

petitioners. No evidence was presented to demostrate,

even circumstantially, any unlawful commonality of

purpose among the defendants, much less any express

or tacit illegal understanding, of any nature, among the

6. Detective Murray, the officer who directed the firebombing

investigation, testified that the supervisor in charge of the investi-

gation reads all the interviews that are taken, directs the detectives

to get additional information, and tells other detectives working on

the case what one individual is saying that may apply to other per-

sons who are being interviewed. (A. 2012a-2013a) This testimony is

uncontradicted, fully explains the manner in which information

passed among the detectives working on the case, and rebuts any

suggestion that the similarities among statements can serve as a

basis for inferring the existence of any conspiratorial agreement.

six of them.’ Perhaps the evidence would support a

finding, as is discussed more fully, infra, at Point II,

that some or all of the defendants, in groups of two or

three, did commit illegal acts in violation of 18 U.S.C.

$241; perhaps, as appears more likely from the jury’s

verdict on the substantive counts, other unindicated

officers committed the unlawful acts in the presence of

7. The Court of Appeals, as set forth in the excerpt from its

opinion quoted, supra, at 14-15, also pointed to evidence indicating

that, of the eight persons who were interrogated, the five who were

permitted to leave were kept at police headquarters until a satisfac-

tory solution of the crime was achieved, that certain statements

made by some of the defendants disclosed knowledge of other beat-

ings, and that the conspirators were meeting together outside the

interrogation rooms. All of this evidence was, in the view of the

Court of Appeals, corroborative of the fact that all six of the defen-

dants were engaged in a common plan and conspiracy to deprive

persons of their rights.

Again, however, this evidence in no way supports the govern-

ment's assertion that a conspiratorial agreement ever came into

existence. Maintaining the presence of material witnesses in police

headquarters is neither indicative of any concerted course of action

nor unreasonable given the possibile need to obtain additional in-

formation from them. Furthermore, one of the witnesses, Christine

Wilkinson, was not kept at headquarters throughout the entire

period (A, 582a-583a), and it further appears that Nancy McCand-

less, another witness, was free to leave but remained at head-

quarters voluntarily until her husband's interrogation was con-

cluded. (A. 1724a) Additionally, the fact that some of the defen-

dants may have been aware of beatings in no way supports a find-

ing that they consented to or were participants in these actions, nor

does it suggest knowledge as to the reasons for or cause of the

beatings. Mere knowledge of illegal acts, as this Court is well

aware, does not, in itself, implicate one in a conspiracy. See United

States v. Morado, 454 F.2d 167 (5th Cir.), cert denied, 406 U.S. 917

(1972). Finally, the alleged meetings among the so-called con-

spirators provides no foundation whatsoever for a finding of an

agreement. The testimony upon which this finding is based

(A. 1422a) did not identify any of the defendants as being either

a party to or a subject of the conversations. In addition, the witness

testifying to this meeting was in the next room when the meeting

allegedly took place and merely overheard the remarks of persons

whom she assumed were detectives.

some of the defendants. But, in any event, no single

conspiracy involving all of the defendants has been

shown.

None of the evidence relied upon by either the gov-

ernment in its argument to the Court of Appeals or by

the appellate court itself can be used to support, di-

rectly or circumstantially, a finding that any single

conspiratorial agreement among all of the defendants

ever came into existence. The only bases upon which

such a finding can be premised are those very actions

and courses of conduct common to each of the defen-

dants which were mandated by their positions and law-

ful duties and responsibilities as police detectives.

It is submitted that such non-incriminatory evi-

dence of “common conduct” is not and cannot be held

to be probative or suggestive of a conspiratorial

agreement. It is well established that proof of the

“agreement” upon which any conspiracy prosecution is

premised must be established by clear and unequivocal

evidence. United States v. Fellabaum, 408 F.2d 220

(7th Cir.), cert. denied sub nom. Pyne v. United States,

396 U.S. 818 (1969), United States v. Borelli, 336 F.2d

376 (2d Cir. 1964), cert. denied sub nom. Cinquegrano

vu. United States, 379 U.S. 960 (1965). The federal

courts have unanimously recognized that evidence in

a conspiracy case must be analyzed “with meticulous

care,” e.g., United States v. Bufalino, 285 F.2d 468.

418 (2d Cir. 1960) (Lumbard, C.J.), and that any

ambiguous evidence in such cases cannot be used

to sustain a conviction. Indeed, the Eighth Circuit

has properly stated that, where the government relies

upon circumstantial evidence to establish the existence

of the agreement, those circumstances must not only be

“consistent with the guilt of defendants, but must be

inconsistent with their innocence.” Shannabarger v.

United States, 99 F.2d 957, 961 (8th Cir. 1938). The

Third Circuit itself has recognized that, in such in-

stances, before a conspiratorial agreement can be es-

tablished, it must be clear that “the activities. . . could

not have been carried on except as the result of a pre-

conceived scheme or common understanding,” United

States v. Barrow, 363 F.2d 62, 64 (3d Cir. 1966), cert.

denied, 385 U.S. 1001 (1967) and this Court has recog-

nized this same concept. Glasser v. United States,

315 U.S. 60 (1942).

In this case, not one piece of evidence relied upon

by the prosecution and the appellate court to sustain

the convictions is inconsistent with the innocence of

the defendants as to the conspiracy charges lodged

against them. And it is likewise clear that each of the

defendants, given the crush of events during the period

in question and the demands and responsibilities im-

posed upon them by their positions as police officers,

acted independently and without any preconceived

plan or understanding. To extract from the evidence

here, any inference that such an unlawful agreement

or common plan ever came into existence would be to

stretch the limits of credulity and to permit convictions

for conspiracy to stand solely on the basis of circum-

stance and innocent and lawful association. This Court

should not sanction such a result and, for this reason

alone, should grant certiorari.

Furthermore, not only was the evidence in this

case insufficient to prove the existence of a conspirato-

rial agreement among petitioners, but it is equally

apparent that the evidence cannot, either directly or in-

ferentially, support a finding that some or all of the peti-

tioners possessed the requisite state of mind to sustain

a conviction for conspiracy.

Proof that any one officer physically abused a wit-

ness or suspect, absent additional proof to tie that

defendant into the larger conspiracy, is plainly insuffi-

cient evidence upon which to base a conspiracy convic-

tion. As the Second Circuit held in United States v.

Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied,

420 U.S. 962 (1975) in the context of a federal nar-

cotics conspiracy prosecution, a single act is insuf-

ficient to support a conspiracy conviction, unless

there is “independent evidence tending to prove that

the defendant in question had some knowledge of

the broader conspiracy, or the single act itself [is] one

from which such knowledge may be inferred.” Id. at

1342 (citations omitted). Again, as is discussed at

length, supra, the evidence presented in this case to

prove an agreement or to demonstrate knowledge of a

larger conspiracy, to the effect that a more involved

relationship existed among the defendants and that

they had prior dealings with each other, the very types

of evidénce which, in the context of a narcotics,

burglary or gambling conspiracy prosecution, might be

directly probative of the requisite state of mind, does

not prove that the defendants in this case intended to

become a part of any larger conspiracy or to pursue

goals other than those pursued on a single occasion.

Nor, it should be noted, does such evidence prove or

suggest that any one defendant, by engaging in unlaw-

ful conduct alone or with one or two others, had any

reason to know that other police officers, in other

places and at different times, would decide to abuse or

harass a suspect under interrogation.

In other words, it is both reasonable and logical to

conclude from the evidence that each alleged beating,

if it took place, was an end in and of itself, and that the

sole purpose of such action was to compel the particu-

lar witness to provide information of the crime. Once

that goal was accomplished — for example, as in the

case of defendants Crown and Jones — no further in-

volvement in the investigation was required, and no

inference can be drawn, from involvement in any

single incident, that a larger conspiracy was necessary

or appropriate, To permit a jury to infer knowledge of

conspiracy from this type of proof in order to meet the

scienter requirements of 18 U.S.C. §241 is to grossly

distort both the facts of this case and the applicable law

and to sanction the very “piling of inferences” that this

Court has previously condemned. Direct Sales Co. v.

United States, supra, 319 U.S. at 711.

At bottom, the jury was permitted to infer the exis-

tence of a culpable state of mind as to all of the defen-

dants from a series of actions and events which were

both lawful and were required of defendants by their

official positions. The government did not, and from

the evidence presented, could not prove beyond a rea-

sonable doubt that any of the defendants committed

substantive criminal acts. Similarly, it could not dem-

onstrate that any defendant intended to deprive an in-

dividual of his federal civil rights, as charged in the

indictment, or to foster the overall goals of the charged

criminal conspiracy. Absent such proof, these convic-

tions likewise cannot stand.

Il. THE FAILURE OF THE GOVERNMENT TO

PROVE THE EXISTENCE OF A SINGLE CON-

SPIRACY AMONG ALL PETITIONERS AND

THE FATAL VARIANCE WHICH RESULTED,

COUPLED WITH THE THIRD CIRCUIT'S FAIL-

URE TO EMPLOY PROPER STANDARDS OF RE-

VIEW ON APPEAL AND ITS DISREGARD OF

THIS COURT’S PRIOR DECISIONS IN THE

CRIMINAL CONSPIRACY AREA, SUBSTAN-

TIALLY PREJUDICED THE TRIAL AND APPEL-

LATE RIGHTS OF PETITIONERS.

At best, the evidence presented by the Government

in this case demonstrates not the existence of a single

conspiracy involving all six of the petitioners, but, to

the contrary, demonstrates multiple conspiracies,

perhaps five or more in number, involving two or three

of the defendants in each. The makeup of these indi-

vidual conspiracies arguably tracks the substantive

counts in the indictment, plus two or three other con-

spiracies in which various unidentified police officers

were involved. By indicting on a single conspiracy

charge, by compelling petitioners to present their de-

fenses in a single trial, by sending the case to the jury

on the basis of one all-encompassing conspiracy, and

by introducing, as against all of the petitioners, evi-

dence which was, in large part, totally unrelated to the

alleged illegal activities with which any individual de-

fendant was charged, substantial prejudice resulted

and a fatal variance occurred. For this additional rea-

son, these convictions cannot be permitted to stand

and review by this Court is warranted.

It is well established that a variance between an

indictment charging a single conspiracy and proof at

trial of multiple conspiracies, such as existed in the

instant case, is fatal if the variance affects the sub-

stantial rights of a defendant. E.g., Berger v. United

States, 295 U.S. 78 (1935); Kopald-Quinn & Co. v.

United States, 101 F.2d 628 (Sth Cir.), cert. denied,

sub nom. Ricebaum v. United States, 307 U.S. 764

(1939). Similarly, it is clear that the substantial

rights of a defendant are seriously jeopardized by

the introduction of a mass of extraneous and confusing

facts which occurs whenever several separate con-

spiracies are joined for trial. Kotteakos uv. United

States, 328 U.S. 750 (1946), a case which involved

proof of eight separate conspiracies, is very clear on

this point. In Kotteakos, Mr. Justice Rutledge found,

from the very number of conspiracies involved, that

the danger of transference of guilt from members of

one conspiracy to members of other conspiracies was

inherently prejudicial:

“Here toleration went too far. We do not think

that either Congress, when it enacted §269, or this

Court, when deciding the Berger case, intended to

authorize the Government to string together, for

common trial, eight or more separate and distinct

crimes, conspiracies related in kind though they

might be, when the only nexus among them lies in

the fact that one man participated in all. Leeway

there must be for such cases as the Berger situa-

tion and for others where proof may not accord

with exact specifications in indictments. Other-

wise criminal conspirators never could be brought

to halt. But if the practice here followed were to

stand, we see nothing to prevent its extension to a

dozen, a score, or more conspiracies and at the

same time to scores of men involved, if at all, only

separately in them. The dangers of transference of

guilt from one to another across the line separat-

ing conspiracies, subconsciously or otherwise,

are so great that no one really can say prejudice

to substantial right has not taken place. Section

269 had no purpose to go so far. The line must be

drawn somewhere. Whether or not Berger marks

the limit, for this sort of error and case, we are

clear that it must lie somewhere between that case

and this one.” Id. at 773-74 (citations omitted) (em-

phasis added).

In this case too, toleration would go too far if the con-

victions are affirmed.

That the “inherent prejudice” sufficient to justify

reversal which was found by Mr. Justice Rutledge in

Kotteakos was present in petitioner’s trial is evident

from a review of the evidence. The testimony presented

by the government accused some of the defendants and

various unidentified officers, in most explicit terms, of

inflicting prolonged and in some instances, brutal beat-

ings on various witnesses and suspects and, further,

that some officers, both defendants and other uniden-

tified persons, made threats and used physical abuse to

coerce statements and confessions from the suspects.

The Court of Appeals classified these activities as

“barbaric” and “misdirected.” (App. A., at 4) However,

there can be no justification for the introduction of evi-

dence of the “barbaric” activities of one defendant or

unindicted co-conspirator in the course of trial of

another defendant who was neither involved in nor had

knowledge of such actions. If this Court concludes, as

it must from its review of this case, that no single con-

spiracy ever came into existence, then it is obvious,

merely on the basis of the appellate court's characteri-

zation of the evidence, that severance was essential

and that the existence of a fatal variance in this case

requires reversal.

Similarly, and as discussed, supra at 16n.5, the

government, by reason of its single conspiracy theory,

was able to put before the jury hearsay evidence

which would have been inadmissible if separate

conspiracies had been charged or if individual trials,

involving only two or three of the defendants, had been

held. Additionally, and of equal significance, is the fact

that the testimony of beatings and harassment, to the

extent it related to officers who were neither identified

nor named as defendants, would generally not have

been admissible had the smaller, two or three man

conspiracies been tried separately. hi

The impact of this multitude of inadmissible evi-

dence on the jury and the prejudice which inevitably

resulted is apparent. The jury either acquitted or failed

to reach a verdict as to the substantive counts in the

indictment. This fact reflects a substantial doubt in the

minds of some or all of the jurors concerning the guilt

of some or all of the defendants as to the federal viola-

tions charged. However, it is clear that the jury was

presented with evidence of some form of wrongdoing in

that it heard testimony that some persons had been

beaten and that some threats had been made, and

further, that all of the defendants who were accused by

the government of committing those wrongdoings had

been involved in a common activity — the investiga-

tion of the firebombing — in one location during a

single period of time. |

Serious and difficult questions were thus raised as

to the nature and scope of the alleged illegal conduct:

whether one, two, four or all six of the defendants were

involved in the illegal activities and whether some per-

sons were intent on beating suspects to obtain a con-

fession while others were simply acting out of rage,

provocation or frustration but with no intent to violate

a suspect's federal rights. Those distinctions, so critical

to this case, were effectively lost in the muddle of evi-

dence presented and the overall conspiracy charged.

The teaching of Mr. Justice Jackson on the realities of

conspiracy prosecutions is most apt in this circum-

stance:

“There generally will be evidence of wrongdoing by

somebody. It is difficult for the individual to make

his own case stand on its own merits in the minds

of jurors who are ready to believe that birds of a

feather are flocked together.”’ Krulewitch v.

United States, supra, 336 U.S. at 454 (concurring

opinien.)

In light of the overwhelming evidence of common con-

duct introduced, applicable to all of the defendants as

well as to various unindicted officers, and given the

far-reaching definition of conspiracy applied by the ap-

pellate court in this case, any individual sitting at the

defense table was bound to be swept up in the charged

conspiracy. See Nye & Nissen v. United States, supra,

336 U.S. at 626 (Frankfurter, J., dissenting opinion).

The ever-present danger of “guilt by association” was

magnified as a result, and no cautionary instruction,

no matter how concise, could possibly have been effec-

tive in the context of this proceeding. See Krulewitch

v. United States, supra, 336 U.S. at 453. (Jackson, J.

concurring opinion.)

Nevertheless, the appellate court, in a summary

and mechanical fashion, rejected the applicability of

this Court’s decision in Kotteakos to the instant case,

and, in turn, totally failed to address itself to or to re-

solve the prejudicial transference of evidence problem

or the “guilt by assocation” issues which were iden-

tified by Mr. Justice Rutledge in Kotteakos. Instead,

the Court strained to formulate a theory sufficient to

sustain the government’s approach to this prosecution.

By defining the conspiracy to include all persons who

acted pursuant to “a common scheme or plan tosolvea

crime . . . by whatever means were necessary,” the

Court of Appeals fashioned a theory which was so broad

that it essentially obliterated any necessity for proof of

an agreement and effectively mandated the conviction of

all persons, related or unrelated to petitioners, who

could have been charged with wrongdoing in this case.

For example, had two police officers, acting on their

own and without knowledge of petitioners’ investigation,

decided to beat a suspect in the firebombing case in

order to obtain information of the crime, they could

have been joined as defendants in this case and their

convictions, given the theory advanced by the appel-

late court, would have been sustained even in the ab-

sence of additional evidence linking them to the other

defendants in the case.

To define the scope of the conspiracy, after the

fact, to fit the evidence and to sustain conspiracy con-

victions is not a difficult task. In fact, by engaging in

this patently improper exercise, the convictions of the

defendants in Kotteakos could have been sustained, on

a single conspiracy theory, if the Court had defined

their conspiratorial conduct as a common scheme to

make a profit from the sale of narcotics. Such ingenu-

ity is not praiseworthy. It permits a reviewing court to

ignore the inherently prejudicial nature of conspiracy

prosecutions, to overlook evidence of the existence of

multiple conspiracies and the possibility of transfer-

ence of guilt among defendants, and to avoid the care-

ful scrutiny of the record, as to each defendant, which

is required in all criminal conspiracy prosecutions. See

United States v. Bufalino, supra, 285 F.2d at 418. As

such, it constitutes a blatant perversion of the teach-

ings of Kotteakos and its progeny, and should be vigor-

ously rejected by this Court.

The failure of the Third Circuit, in this instance, to

heed this Court's Opinion in Kotteakos exemplifies the

general uncertainty which exists among those lower

courts that have dealt with variance issues in the con-

spiracy area. In the years since 1947, when this Court,

in Blumenthal v. United States, 332 U.S. 539 (1947),

last addressed itself, at any length, to the principles

governing prejudicial variance, many of the lower fed-

eral courts have given mere lip service to the critical

factor of transference of guilt in their review of conspir-

acy convictions. As a result, the Kotteakos decision

has been severely limited to its facts, see United

States v. Morado, supra, 454 F.2d at 171, and various

rationales have been advanced to avoid application of

the principles set down by Mr. Justice Rutledge in his

Opinion. In the instant case, the Third Circuit ignored

the variance problem altogether by straining to define

the conduct of the conspirators so as to retain a single

conspiracy theory. Other courts have held that, despite

the existence of a variance between indictment and

proof, a defendant in a single conspiracy case is not

prejudiced and his conviction can be sustained if the

evidence, without more, would permit a jury to con-

clude that that defendant was guilty of membership in

one of the multiple conspiracies proven at trial. See

United States v. Wayman, 510 F.2d _ 1020 (5th Cir.),

cert. denied sub nom. Moore v. United States, 423

U.S. 846 (1975); Jolley v. United States, 232 F.2d 83

(Sth Cir. 1956). This latter view has been adopted in

spite of this Court's assertion in Kotteakos “|t]hat con-

viction would, or might probably, have resulted in a

properly conducted trial is not the criterion of §269.”’

Kotteakos v. United States, supra, 328 U.S. at 776.

Indeed, even those courts which have applied the Kot-

teakos guidelines in reversing conspiracy convictions

have frequently disregarded the theoretical under-

pinnings of that decision and have premised their deci-

sions solely on the numbers of defendants or con-

spiracies which were joined together in one indictment

and trial. See, e.g., Rocha v. United States, 288 F.2d

545 (9th Cir.), cert. denied, 366 U.S. 948 (1961); Daily

vu. United States, 282 F.2d 818 (9th Cir. 1960); Brooks

v. United States, 164 F.2d 142 (Sth Cir. 1947).

Therefore, it is submitted that it is both necessary

and appropriate for this Court to clarify the standards

which are being employed, both by the government

and by the courts, in the processing and handling of

conspiracy cases and to review the difficult problems of

proof, variance, and prejudice arising out of the

haphazard joinder of multiple conspiracy-multiple de-

fendant cases in a single prosecution. Judicial percep-

tions of fairness and due process within the criminal

process have been markedly altered over the past dec-

ades. Nevertheless, the government has continued to

institute conspiracy prosecutions at a rapid rate, in

total disregard of the dangers and attendant unfairness

inherent in such cases. As a result of these abuses,

innumerable defendants, including petitioners

herein, are being denied their most basic rights to a fair

trial and full and complete review of their convictions.

The Kotteakos decision has continuing vitality; how-

ever, the mere fact that this Court has not seen fit to

reexamine and reaffirm the ruling and rationale set

forth in that case for over three decades has resulted in

the inequities and inconsistencies present today in

conspiracy prosecutions throughout the country. These

issues clearly require review at this time. Given the

nature of the evidence and the subject matter of the

instant case, as well as the patently improper fashion

in which appellate review of the convictions below

was carried out and the ramifications which the Third

Circuit’s decision will have on future conspiracy prose-

cutions, it is submitted that such review can best be

achieved in the context of this case, and that, for this

additional reason, certiorari should be granted.

Il. IN GRANTING IMMUNITY TO TWO PROSECU-

TION WITNESSES UPON COMMENCEMENT OF

THEIR CROSS-EXAMINATION TESTIMONY, THE

GOVERNMENT VIOLATED BOTH THE PROVI-

SIONS AND PURPOSE OF THE IMMUNITY STAT-

UTE AND EMPLOYED A PROCEDURE WHICH

SEVERELY PREJUDICED PETITIONERS’ RIGHT

TO A FAIR TRIAL.

A. The Grant of Immunity After Completion of the Di-

rect Testimony of Two Government Witnesses,

Solely for Cross-Examination is Violative of the

Provisions and Purposes of the Federal Immunity

Statutes.

Section 6003(a) of Title 18, United States Code,

provides:

“In the case of any individual who has been or

may be called to testify or provide other informa-

tion at any proceeding before or ancillary to a court

of the United States or a grand jury of the United

States, the United States district court for the judi-

cial district in which the proceeding is or may be

held shall issue, in accordance with subsection (b)

of this section, upon the request of the United

States attorney for such district, an order requir-

ing such individual to give testimony or provide

other information which he refuses to give or

provide on the basis of his privilege against self-

incrimination, such order to become effective as

provided in section 6002 of this part.’’ (eniphasis

added)

In this trial, the government deliberately misapplied

and, thereby, violated the express provisions of the

immunity statute on two separate occasions, by re-

questing and obtaining from the Court immunity

grants as to witnesses who had already completed their

testimony on direct examination, solely for the purpose

of protecting that direct testimony. The statute plainly

does not authorize such usage and allows the grant of

immunity only where the government requires affir-

mative assistance to obtain testimony or other infor-

mation from a witness. *

Two of the government’s witnesses, Ronald Hanley

and Vincent Cuccinotta, were called to testify to the

events which took place at police headquarters. Prior

to calling them, the prosecutor was fully aware of the

fact that both of these witnesses intended to invoke

their fifth amendment rights if questioned as to the

events relating to the firebombing incident, and had

agreed to grant immunity to them if the need arose

during their cross-examinations. (A.676a-686a;

1262a-1265a) Further, defense counsel made it clear,

8. The general rule in the immunity area is that defendants

have no standing to contest the propriety of grants of immunity to

witnesses testifying against them, see United States v. Lewis, 456

F.2d 404 (3d Cir. 1972), and the government will surely argue this

point in opposition to this petition. However, in this instance, both

as to Section A and B of this Point III, objections are being made not

to the propriety of the grant of immunity, but to the procedure em-

ployed by the government in requesting and employing grants of

immunity given the clear language of the statute forbidding the

grants that were provided in this case, and the prejudicial effect of

that procedure on the presentation of petitioners’ defense. The

rights of the witnesses are not violated by this procedure. To the

contrary, it is the rights of the petitioners to a full and fair trial and

to confront witnesses testifying against them which is being in-

fringed upon by the government's improper employment of the im-

munity grant. The substance of and basis for the grant is not being

questioned; the manner in which the grant was employed and the

prejudicial impact of those grants upon defendants’ trial is the sub-

ject of this petition. In such circumstances, no one but the defen-

dants themselves have any standing to or interest in obtaining re-

view of the government's actions. To hold otherwise would be to

leave petitioners defenseless to governmental misconduct during

criminal proceedings.

prior to the commencement of direct testimony, that he

intended to cross-examine on matters relating to the

fire-bombing even if the government chose not to cover

these areas on direct examination and the court indi-

cated, at that same time, that, in its opinion, examina-

tion by defense counsel as to the firebombing was per-

missible. (A.684a-685a) Despite these facts, and de-

spite the suggestion of the trial court that these wit-

nesses be immunized prior to their direct testimony,

(A.684a) the government refused to request grants of

immunity until cross-examination commenced. And

even when it did request and obtain the immunity

grants, neither the government nor counsel to either of

the witnesses made any showing to the court that the

forthcoming testimony would, in fact, be incrimina-

tory. (A. 743a-755a)

The federal immunity laws are to be strictly con-

strued. E.g., United States v. Leonard, 494 F.2d 955

(D.C. Cir. 1974); Ellis v. United States, 416 F.2d 791,

797 (D.C. Cir. 1969). A plain reading of the statutory

language does not permit the government to use im-

munity grants as shields to protect previously obtained

evidence or to employ these powers in a fashion which

will detrimentally impact upon the sixth amendment

rights of criminal defendants to full and complete

cross-examination and a fair trial.

In this case, the government plainly had no inter-

est whatsoever in the substance of the cross-

examination testimony of either witness. However, in

order to avoid a successful motion to strike and a sub-

sequent declaration of a mistrial, the prosecution

granted immunity to these witnesses, despite its de-

clared lack of interest in their cross-examination tes-

timony. Indeed, the prosecutor specifically stated that

the sole reason for the grant of immunity was to protect

the direct testimony and to ‘‘safeguard” the court

against any motion to strike that direct testimony.

(A.685a) Petitioners were thereby denied their rights to

have the direct testimony excluded if the witnesses in-

voked their fifth amendment rights, and were further

prejudiced in their right to a fair trial and to confront

witnesses against them, as is more fully discussed,

infra at 35. To the extent that the government re-

quired information from those witnesses, it had been

fully elicited and presented to the jury during the di-

rect examination. Nothing in the witnesses’ cross-

examination testimony would advance the prosecu-

tion’s case or lead to the discovery of relevant informa-

tion. In fact, the particular areas of questioning which

purportedly necessitated the grants of immunity were

not even the subject of the witnesses’ direct testimony.

No reasonable reading of the immunity statute

would permit the government to impede a criminal de-

fendant’s exercise of his rights during trial by granting

immunity to a witness in such a situation. Immunity

was given not for the purpose of compelling forthcom-

ing testimony or advancing any governmental interest,

but solely to protect previously obtained testimony. The

immunity powers were, in this case, used solely as a

shield, and not, as intended by the legislature, as a

vehicle to advance the investigation and prosecution of

the case. And although petitioners are unaware of prior

federal or state cases in which government prosecutors

have attempted to employ the “powerful executive im-

plement” of immunity, In Re Daley, 549 F.2d 469, 480

(7th Cir.), cert. denied, 434 U.S. 829 (1977), in such a

manner, it is clear that the federal immunity statutes

were neither designed nor intended to be used in this

fashion. }

Congress enacted the immunity statutes in order to

advance the government's strong interest in compel-

ling testimony, United States v. Bryan, 339 U.S. 323,

338 (1950), and to provide a means for prosecutors to

obtain testimony in order to investigate and prosecute

criminal activity. Kastigar v. United States, 406 U.S.

441, 446 (1972); In re Daley, supra, 549 F.2d at 478-

79. At no point in time has Congress or any court ever

stated or suggested that the government may employ

these same powers to protect testimony which has pre-

viously been received into evidence or to compel tes-

timony or evidence in which it clearly had no interest,

and nothing in either the statute itself or its legislative

history, 1970 U.S. Code Cong. & Ad. News 4007, pro-

vides any support whatsoever for the government’s ac-

tions in this case. This Court should expressly con-

demn such tactics at this time and in this case.

B. The Procedure Employed by the Government in its

Grants of Immunity to Two Government Witnesses

Solely for Cross-Examination Purposes Substan-

tially Prejudiced Petitioners’ Right to a Fair Trial.

The effect on the jury of the government’s grant of

immunity to two government witnesses solely for the

purposes of cross-examination, in that it permitted the

jury to employ one standard of credibilicy in evaluating

the non-immunized direct testimony of the witnesses

and a totally different credibility standard in consider-

ing the immunized, cross-examination testimony of

these same witnesses, was clearly prejudicial and con-

stitutes plain error. While the testimony elicited by the

government on direct examination was unencumbered

by the increasingly complex questions of credibility

which always surround testimony given under immu-

nity, the jury was free to speculate on the effect of the

immunity grants upon these same witnesses’ cross-

examination testimony. Beyond question, to permit a

jury, as a direct result of governmental manipulation

of grants of immunity, to attach a different standard of

credibility to cross-examination testimony as com-

pared to testimony presented by the government dur-

ing direct, as was allowed in this case, is to gravely

prejudice the rights of those defendants who are to be

judged on the basis of this very evidence.

It is axiomatic that testimony given under a grant

of immunity must “be examined by the jury . . . with

greater care than that of an ordinary witness.”’ The

trial court so charged in this case. (A.2973a) This addi-

tional test of credibility causes no prejudice to a defen-

dant where the immunity grant applies both to the di-

rect and cross-examination testimony of the im-

munized witness. However, where, as in this case, the

government requests and obtains grants of immunity

only after the direct examination has concluded, and

only for the purpose of defense cross-examination, the

jury is invited to apply two different standards in

evaluating the testimony of the same witness. The re-

sult of such a procedure is per se prejudicial to the

rights of the defendants against whom this testimony

is presented.

Thus, in this case, the jury was permitted to con-

clude that the grant of immunity enhanced the credi-

bility of the witness and of his cross-examination tes-

timony. In that instance, the impact on the jury of the

entire cross-examination process would be dulled and

any inconsistencies or inaccuracies brought out by that

examination, given the jury’s predeliction to accept the

witness’ testimony, would be substantially or com-

pletely disregarded. On the other hand, the jury could

have concluded that the credibility of the witness or the

reliability of his testimony on cross-examination was

diminished as a result of the grant of immunity. In that

instance, any testimony elicited on cross-examination

which would tend to be beneficial to the defense would

be substantially or totally discounted by the jury with-

out in any way affecting the direct testimony of that

same witness which was given prior to the grant of

immunity.

In either case, the defense is placed in a no-win

situation. Either the reliability and significance of any

admissions, inconsistencies or other testimony elicited

by cross-examination would be diminished or the cred-

ibility and importance of that same witness’ tes-

timony would be further enhanced, all as a result of the

government’s decision to grant immunity only upon

the commencement of cross-examination by the de-

fense. The inescapable effect of permitting the prose-

cution to employ these tactics, in this case, was to sub-

stantially prejudice the defendant’s ability to present

their defense or to succeed in their attempts to demon-

strate the falsity of the testimony of two extremely crit-

ical government witnesses. Such a procedure consti-

tutes clear grounds for reversal.

The instructions of the Court, although correct in

instances where the immunity powers of the govern-

ment are employed properly and as to both the direct

and cross examination portions of the witness’ tes-

timony, could not cure or otherwise protect against the

inherent prejudice resulting from the prosecutor’s un-

lawful request for immunity solely for defense cross

examination. The Court, in its charge, told the jury

that it could determine that, as a result of the grant of

immunity, the testimony given thereunder was either

“more reliable or less likely to be false” or that such

testimony was less likely to be “truthful and accurate.”

(A.2974a) But the Court did not, and given the unprec-

edented nature of the government’s activity, could not

have been expected to frame and deliver a charge suf-

ficient to cure the patent error caused by the split na-

ture of the testimony. As a result of the government's

improper conduct, the jury was compelled or otherwise

given the opportunity to employ one set of standards in

determining the credibility of the direct testimony and

a completely different standard in measuring the relia-

bility and credibility of that same witness’ testimony on

cross-examination. Such a double standard should not

be tolerated and, beyond question, constitutes plain

error under the facts of this case.

If the government had not granted immunity to

these two witnesses and fifth amendment privileges

had been invoked, defense motions to strike the direct

testimony would surely have been granted, and a mo-

tion for mistrial would have been both appropriate and

successful given the nature and significance of the di-

rect testimony. Instead of taking this risk, the prosecu-

tor freely chose to grant the immunity without consid-

eration of the prejudicial effect which such actions

would have on the defendants’ cases.

The procedure employed herein could have and

likely did have a substantial, prejudicial effect upon

the opportunity of petitioners to present a full defense

and to conduct a full and fair cross examination of their

accusers. Such governmental chicanery within the

criminal process should not be sanctioned by this

Court.

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that a writ of certiorari should issue to review the

judgment and opinion of the United States Court of

Appeals for the Third Circuit.

Respectfully submitted,

Richard A. Sprague

Chaat (ete.

Edward H. Rubenstone

Counsel for Petitioners

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, PA 19103

(215) 561-7681

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of June, 1979,

three true and correct copies of the Petition for Writ of

Certiorari were personally served on the United States

Attorney for the Eastern District of Pennsylvania, 3310

United States Courthouse, 601 Market Street, Phila-

delphia, PA 19106, and on the Solicitor General, De-

partment of Justice, Washington, D.C. 20530.

I further certify that all parties required to be

served have been served.

Edward H. Rubenstone

APPENDIX A

A-1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 78-1555, 78-1556, 78-1557, 78-1558, 78-1559 and

78-1560

UNITED STATES OF AMERICA

US.

ELLIS, JOHN, Appellant in No. 78-1555

(D.C. Crim. No. 77-00428-01)

CARTY, JAMES, Appellant in No. 78-1556

(D.C. Crim. No. 77-00428-02)

CURLEY, JAMES, Appellant in No. 78-1557

(D.C. Crim. No. 77-00428-03)

JONES, WILLIAM, Appellant in No. 78-1558

(D.C. Crim. No. 77-00428-04)

CROWN, JAMES, Appellant in No. 78-1559

(D.C. Crim. No. 77-00428-05)

McMILLAN, ROSEBOROUGH, Appellant in

No. 78-1560

(D.C. Crim. No. 77-00428-06)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued December 14, 1978 Before GIBBONS, VAN DUSEN and ROSENN,

Circuit Judges

Filed March 13, 1979

A-2

OPINION OF THE COURT

GIBBONS, Circuit Judge

The appellants, six members of the Homicide

Bureau of the Philadelphia Police Department, appeal

from judgments of sentence following their conviction

by a jury of conspiracy to deprive Philadelphia resi-

dents of federal civil rights in violation of 18 U.S.C.

§241. We affirm.

A-3

I. THE FACTS

Sometime in the mid-1970s Radamas Santiago

purchased a home at 4419 North 4th Street in the Fel-

tonville section of Philadelphia. The Santiagos had dif-

ficulties with some of their new neighbors. In late Sep-

tember, 1975 the Santiago car was firebombed. A few

days later, on October 5, 1975, at 3:25 a.m., while the

Santiagos were asleep in their home, their house was

firebombed. Radamas and one of his sons, Carlos, sur-

vived. Radamas’ wife, three of his children, and Luis

Caracini, a guest in the house, perished in the fire. The

five appellants, along with other Philadelphia police

officers, were assigned to investigate this arson mur-

der.

Sleeping on the front porch of the Santiago home

when the house was firebombed was Nelson Garcia, a

fourteen year old Puerto Rican boy, a friend of the San-

tiagos. His hair aflame, Garcia fled from the house,

looking for a fire alarm. Garcia saw one Robert Wilkin-

son in an automobile stopped near the Santiago home.

Because Wilkinson was the first person he saw, Garcia

assumed, contrary to the fact, that Wilkinson had

started the fire. When the investigating Philadelphia

police officers interviewed him, Garcia accused Wil-

kinson, who was promptly arrested. Admitted to Tem-

ple University Hospital, Garcia was questioned

further, and elaborated that he had seen Wilkinson

throw a bottle with a burning cloth onto the Santiago

porch. Wilkinson was taken to the Philadelphia Police

Administration Building (PAB), where he was ques-

tioned by several of the defendants. Eventually he

signed a confession to a crime which he did not com-

mit. Wilkinson was tried and convicted in the Philadel-

phia Common Pleas Court on five counts of murder.

Garcia was the only alleged eye witness to testify,

falsely, against him. Garcia had been influenced to do

so by hearing that Wilkinson had confessed. Eventu-

A-4

ally the person who actually had thrown the firebomb,

David McGinnis, acknowledged his guilt. Wilkinson's

conviction was reversed, after he had spent fifteen

months in jail.

An investigation by federal authorities into the ef-

forts of these six Philadelphia police officers to procure

the evidence which led to that conviction resulted in

their indictment for conspiracy, under color of Penn-

sylvania law, to injure, oppress, threaten, and intimi-

date Robert Wilkinson, Ronald Hanley, David McGin-

nis, John McCandless, Vincent Cucinotta, Christine

Wilkinson and Judith Cucinotta in the enjoyment and

exercise of rights secured to them by the Constitution

and laws of the United States. The named victims of

the conspiracy are all persons whom the Philadelphia

Police subjected to detention and coercive interroga-

tion in their effort to build a case against Wiikinson.

The evidence presented by the government suggests

that the methods of investigation used by the defen-

dant homicide detectives were as barbaric as they were

misdirected. With respect to each victim of the conspir-

acy the jury could have found as outlined below.

A. The Wilkinsons

Wilkinson was twenty-five years old. He had at-

tended special classes for slow learners throughout his

education, which ended at age sixteen, and was essen-

tially illiterate. He arrived at the PAB with his wife,

Christine, shortly after 5:00 a.m. They were separated

and both were detained. He was placed in a small win-

dowless interrogation room, containing a bolted-down

steel chair. Defendants Jones and Crown questioned

him about the firebombing, and he denied having any-

thing to do with it. He told the detectives that he and

his wife had been out celebrating their anniversary,

and that he first saw the fire upon returning from an

errand io get cigarettes for her. He immediately drove

around the corner and set off a fire alarm. After Wilkin-

A-5

son had gone over his statement four or five times,

maintaining his innocence throughout, defendants

Jones and Crown were joined in the interrogation room

by defendant McMillan. The latter told Wilkinson that

there were three or four counts of murder against him

and that the police had an eyewitness. McMillan then

punched Wilkinson in the chest. As Wilkinson fell to

the floor from the blow, McMillan, who then weighed

over three hundred pounds, slapped him across the

side of the face with tremendous force. As McMillan

left the room, he said to Jones and Crown that if they

needed him he would return and deliver a punch which

would stop Wilkinson’s heart.

After McMillan’s departure, Crown and Jones de-

manded that Wilkinson execute a form consenting to a

polygraph test. Since he could not read, Wilkinson

asked that his wife be allowed to read it. Crown and

Jones refused, and threatened to take away the Wilkin-

sons’ five month old child if he did not sign. Finding

that threat credible, he signed.

Wilkinson was taken to a polygraph room in the

basement of the PAB. Throughout the polygraph test

he continued to maintain his innocence. After the test,

however, Crown and Jones began a systematic beating

in an effort to coerce a confession from Wilkinson

which would confirm Garcia’s false eyewitness iden-

tification. Although he continued to maintain his inno-

cence during the early stages of the beating, eventually

Wilkinson’s resistance crumbled, and at 11:05 a.m. he

signed a confession to a crime he did not commit.

In the confession Wilkinson supplied details which

he could not have known. He said that the firebomb

which he threw had been made from a Maxwell House

coffee jar and a burning wick.' Wilkinson confessed that

1. Although Garcia was unable to describe the fire bomb when

questioned by detectives at noon on October 5, ten days later he was

able to describe it to virtually the exact measurements of a Maxwell

House coffee jar.

A-6

one Ronald Hanley supplied the bomb, and that the insti-

gation to throw it came from Hanley and two other men.

Corroboration of Wilkinson’s severe beating was

furnished by a prison doctor and a guard, who saw his

injuries, by prison photographs of abrasions and cuts,

and by neighbors who attended his arraignment in the

courtroom at the PAB and observed that he could

hardly walk without assistance.

B. Hanley

Ronald Hanley, the man whom Wilkinson’s

coerced confession implicated, was a Democratic

Committeeman in the Santiagos’ neighborhood. He

was arrested and brought to the PAB with David

McGinnis, a neighborhood youth, around 8:00 a.m. on

October 5. Those arrests did not result from any infor-

mation obtained from Garcia or Wilkinson, but from

information obtained from a neighborhood resident

implicating the pair in the firebombing of the Santiago

automobile ten days earlier. Thus Hanley, like Wilkin-

son, came to the PAB as a prime suspect. When ques-

tioned, however, he initially denied knowledge about

the firebombing of the house. He was then taken to the

polygraph room for testing, and again maintained his

innocence.

About 11:00 a.m. Hanley was returned from the

polygraph area to an interrogation room where he was

interrogated by defendants Ellis, Carty, Curley and an

unidentified co-conspirator. Hanley was subjected to a

prolonged series of beatings during which his nose was

lacerated. In one instance a kick or punch caused him

to lose control of his bowels. He was made to sit in his

soiled clothing for close to an hour before being taken

to a rest room and allowed to clean himself.* The inter-

2. While in the rest room he threw his undershorts in the trash.

That action was to provide a corroborative detail, since several

hours later warrants were issued for the seizure of the clothing of

Hanley and Wilkinson in order to test for vapors of petroleum distil-

late. Wilkinson's, but not Hanley’s underwear was seized.

A-7

rogation followed the well known ‘Mutt and Jeff”

routine in which one officer (Kuhar) would ask ques-

tions in a relatively friendly manner, and the others

would, if he was unsuccessful, return and administer

physical punishment. At 10:45 p.m. on October 5, al-

most fifteen hours after he had arrived at the PAB,

Hanley signed a four page confession which tied in

neatly with that obtained from Wilkinson some twelve

hours earlier. To the extent that it admitted partici-

pation in the firebombing of the Santiago house, the

confession was true. But it confirmed that Hanley had

supplied-the firebomb to Wilkinson. This was false, for

Wilkinson was a non-participant and David McGinnis

had actually thrown the bomb.*

Corroboration of Hanley’s several beatings was

supplied by prison photographs showing abrasions and

cuts and by a prison doctor who opined that he had

suffered a trauma to his chest which resulted in a spot

on a lung x-ray taken shortly after he was jailed.

C. McGinnis

David McGinnis, too, arrived at the PAB as a prime

suspect because of the information the police had re-

ceived about the burning of the Santiago car. During

his interrogation he was beaten by Carty and by McMil-

lan. On October 5, he signed a confession that he had,

with Hanley, firebombed the Santiago automobile. He

did not, however, admit to any role in the firebombing

of the Santiago home.

Many months iater, after Wilkinson had been con-

victed of murder in Pennsylvania Court of Common

3. State charges against Hanley were dismissed because the

- Commonwealth was unable to moye its case against him within

180 days of his arrest. Hanley was later indicted by a federal grand

jury for violating 18 U.S.C. §§844(b), 371, 2(a) and 1510, 26 U.S.C.

§§$5861(f) and (d), and 42 U.S.C. §3631. His conviction was af-

firmed by this court. United States v. Hanley, No. 78-1309 (3d Cir.

Dec. 14, 1978).

A-8

Pleas, McGinnis confessed. He pleaded guilty to fed-

eral charges growing out of the firebombing conspiracy

and was sentenced to twenty-two years incarceration.

McGinnis testified in the federal trial of Ronald Han-

ley, and in this trial, that he and Hanley had conspired

to torch the Santiago home, and that he had actually

thrown the bomb.

C. The Cucinottas

Vincent and Judith Cucinotta lived across the

street from the Santiagos. They were brought to the

PAB by a Philadelphia detective about noon on October

5, apparently because the police had information about

altercations between members of the Santiago and

Cucinotta households. They were separated im-

mediately on their arrival. Vincent Cucinotta was

questioned about gasoline he kept in his garage. Later

he was polygraphed. Following the polygraph he was

administered a series of beatings by a detective he be-

lieved was McMillan. Cucinotta’s identification of

McMillan was not positive, but McMillan was posi-

tively identified as a beater of Wilkinson and McGinnis,

and was the one of two black detectives involved in the

interrogation: the larger of the two.*

Judith Cucinotta was an eye witness to the

firebombing. Looking out her window she had seen

Hanley hand the bomb to McGinnis. She did not dis-

close this information to the police on October 5.5 When

she was separated from her husband she was interro-

gated by a detective about whether she and Nancy

4. Vincent Cucinotta was prosecuted with Ronald Hanley by

the federal government for conspiracy to firebomb the Santiago

home, but was found not guilty by the same jury which convicted

Hanley.

5. She testified that her motives for concealment were the pos-

sible involvement of her husband, who had spoken to Hanley and

McGinnis sometime prior to the firebombing, and fear of retaliation

against her by Hanley and McGinnis.

A-9

McCandless had siphoned gasoline from a car. She

maintained her own innocence, and denied any knowl-

edge of who was involved. After being subjected to a

polygraph test, she was threatened by a detective with

being put in “State Road for 30 days where she would

be held with a bunch of lezzies and queers.” The detec-

tive also threatened to take her children away and

place them in an orphanage with Puerto Ricans, who

would kill them. She was also threatened with a visit to

the morgue to look at the burned Santiago bodies. She

never, on October 5, gave an incriminating statement,

or one implicating Hanley and McGinnis. She was de-

tained at the PAB until after Hanley gave a false

statement implicating Wilkinson.

Judith Cucinotta provided corroboration of the

abusive interrogation of two other victims, Wilkinson

and McCandless, who she had occasion to see in a dis-

tressed condition at the PAB briefly. She also over-

heard, during her incarceration, conversations be-

tween detectives indicating that they were acting in

concert in conducting the several interrogations.

F. The McCandlesses

John and Nancy McCandless were also neighbors

of the Santiagos. At 10:30 a.m. on October 5, 1975,

they were asked by three Philadelphia detectives to go

to the PAB for about a half hour to give a formal state-

ment. Upon arrival they were immediately separated

and interrogated. John McCandless denied knowledge

of the firebombing. When he persisted in that denial he

was struck by an unidentified detective. Later that de-

tective returned and said the bomb thrower had been

apprehended, but McCandless was involved. When he

again professed innocence, McCandless was struck.

Defendant McMillan joined in the interrogation, ac-

cused McCandless of lying, and threatened to stop

McCandless’ heart by punching him in the chest. He

also told McCandless “when I get done with you, I’m

A-10

going to work yuur old lady over and she won’t hold up

half as much as you did.” McMillan left, and the first

detective returned and administered more beatings,

insisting that McCandless should confess his role in

the firebombings. Unable to endure the pain, McCand-

less confessed to having aided Wilkinson in siphoning

gasoline. This confession was false, in that McCand-

less had no involvement at all, and inconsistent with

the confession which had been coerced from Hanley, in

which Hanley said he supplied the gasoline to Wilkin-

son. The McCandlesses were kept at the PAB for

approximately sixteen hours, until after Hanley’s

statement was obtained. Although he had confessed to

participation, after Hanley’s confession McCandless

was released early in the morning of October 6, and

was never charged.

As noted above, the beating of McCandless is cor-

roborated by the testimony of Judith Cucinotta, who

observed his appearance at the PAB.

A-11

Il. APPELLANTS’ CONTENTIONS

Appellants have filed a joint brief in which they

contend: that there was insufficient evidence of a con-

spiracy in violation of 18 U.S.C. §241; that they were

denied a fair trial because of prosecutorial misconduct;

that the court erred in its charge and in its refusal to

charge as requested; that the court erred in granting

immunity to government witnesses; and that the in-

dictment was duplicitous. We turn to those conten-

tions.

A. Sufficiency of the Evidence

The defendants argue that the government’s evi-

dence was insufficient to support a jury verdict that

they conspired. That evidence, they submit, tends to

show no more than several individual:zed attempts to

coerce separate witnesses into making incriminating

statements. In their defense all the detectives took the

position that the beatings referred to above never oc-

curred. There was no testimony by a police informer

detailing concert of action. Rather, the government's

case on conspiracy was circumstantial. As we said in

United States v. Barrow, 363 F.2d 62, 64 (3d Cir.

1966), cert. denied, 385 U.S. 1001 (1967):

The crime of conspiracy . . . is seldom susceptible

of proof by direct evidence. Proof of the crime may

rest as it frequently does, on indirect or cir-

cumstantial evidence. The existence of a conspir-

acy may be inferred from evidence of related facts

and circumstances from which it appears. as a

reasonable and logical inference, that the ac-

tivities of the participants in the criminal venture

could not have been carried on except as the result

of a preconceived scheme or common understand-

ing.

A-12

Applying that measure of the sufficiency of cir-

cumstantial evidence of a conspiracy, there is more

than ample evidence in this record of a common

scheme or plan to solve a crime to the satisfaction of

the conspirators by whatever means were necessary,

including the violation of suspects’ and witnesses’ con-

stitutional rights. All were engaged in a common en-

deavor. Each, the jury could find, beat one or more of

the witnesses or suspects. Some moved from victim to

victim. The false confession coerced from Wilkinson

was tailored to fit the misinformation received from

Garcia, and the false confession coerced from Hanley

was tailored to fit that previously coerced from Wilkin-

son. All the victims were kept at the PAB until a “solu-

tion” satisfying the common purpose was obtained by

virtue of Hanley’s confession. When that was ac-

complished McCandless was released, although he had

given a coerced confession inconsistent with Hanley’s.

The statements made by some participants disclosed

knowledge of beatings by others, and thus disclosed

that the ~onspirators were meeting together outside

the interrogation rooms.

Relying on Kotteakos v. United States, 328 U.S.

750 (1946), the defendants urge that, at best, there

were separate conspiracies participated in by same but

not all of the detectives, rather than the single conspir-

acy charged. We conclude, however, that the control-

ling precedents are Blumenthal v. United States, 332

U.S. 539 (1947), and United States v. Kenny, 462 F.2d

1205 (3d Cir. 1972), cert. denied, 409 U.S. 914 (1972).

The jury could, and did, find that the defendants were

united in a common scheme of obtaining a satisfactory

solution to the Santiago slayings by the illegal means of

depriving suspects and witnesses of their Constitu-

tional rights.

B. Prosecutorial Misconduct

The defendants urge that a new trial is required

A-13

because of remarks by the prosecutor in his opening

speech, during the trial and in his closing argument.

Of ten references to the opening speech pressed on

appeal, only four were objected to in the district court

and pressed as grounds for a mistrial (46a). The court

denied this motion, and instructed the jury, as he had

before the prosecutor’s opening statement, that that

speech was not evidence, and that no conclusions

should be drawn or opinions formed from it. Our

examination of the opening statement convinces us

that each of the matters objected to was a prior refer-

ence to anticipated testimony, or a reasonable form of

descriptive argumentation. Perhaps the reference

closest to marginal propriety is the sentence:

Anyone who remembers Cardinal Mindszenty or

American prisoners of war in Vietnam or Korea

can remember what distortion of truth and right

can occur. (25a).

This was said in the context of a discussion of the

privilege against self-incrimination and of the charge

that the constitutional right had been violated. While a

more apt analogy than brainwashing by foreign powers

might have been chosen, we agree with the district

court that it certainly was not so inflammatory as to

require a mistrial. The other claimed improprieties

were even less so.

The references to remarks by the prosecutor during

the trial are, as alleged errors, even less persuasive.

The prosecutor at one point said that Wilkinson’s “life

was at stake.” This is objected to because in 1977, after

the events in question, Pennsylvania abolished the

death penalty. When Wilkinson was tried he was liable

to the death penalty. The prosecutor referred to Wilkin-

son’s mental retardation, and this is alleged to be un-

supported in the record. There was an offer of proof, not

admitted, as to his mental capacity. We find the refer-

ence to be harmless at worst. Defendants object to a

A-14

reference to Exhibit G-36, an exhibit properly admitted

in evidence. They also object to a reference to some of

their number as a “goon squad.” In this, the prosecutor

merely quoted the witness, Ronald Hanley, who in turn

quoted that description by Detective Kuhar of some of

the defendants who had worked over Hanley. These

and all the remarks complained of were either entirely

proper, or if even marginally objectionable, clearly

harmless.

Defendants charge that in closing argument the

prosecutor (1) expressed his personal opinion as to

their guilt, (2) expressed his persona! opinion as to wit-

ness credibility, (3) made arguments on the basis of

facts not in the record, (4) appealed to nonevidentiary

reasons for convicting the defendants, and (5) improp-

erly referred to Wilkinson’s innocence of the murder

charges on which he had been tried. Most parts of the

closing argument now complained of were not objected

to in the district court. To the extent that they were, we

find that in context they were proper comments on the

evidence or proper argument as to inferences which

could be drawn therefrom.

C. The Court’s Charge

In order to convict under 18 U.S.C. §241 the jury

must find that a specific intent to violate constitutional

rights was proved beyond a reasonable doubt. United

States v. Guest, 383 U.S. 745, 753-54 (1966); Screws

v. United States, 325 U.S. 91, 101 (1945). Discussing

the substantive offenses under 18 U.S.C. §242 (Counts

II, Il] and IV), the court charged:

There must, however, be a specific intent to

deprive a person of a federal right made definite by

decisions or other rule of law, that is, either by the

expressed terms of the Constitution or decisions in-

terpreting the Constitution. An act done in open

defiance or reckless disregard of a Constitutional

A-15

requirement which has been made specific and de-

finite, may be found to have been done willfully

within the meaning of the statute.

To find a defendant guilty, it is necessary for

the jury to find that such defendant had not only a

generally bad and evil purpose, but also had the

purpose to deprive the victim of a Constitutional

right. (2998a).

Defining a §241 conspiracy, the court charged:

The Government must prove beyond a reason-

able doubt that the purpose of the conspiracy was

to violate the free exercise of a constitutional right

as I have outlined that to you. (3011a).

Referring to overt acts in furtherance of the conspir-

acy, the court charged:

[aJnd you must find that it was done for the purpose

of depriving one or more of the alleged victims of

their Constitutional rights. (3008a).

The defendants requested this additional instruction:

The Defendants may not he convicted simply be-

cause they engage in a conspiracy and that one of

the effects of the conspiracy was to violate the Civil

rights of a particular complainant. The Govern-

ment must shew beyond a reasonable doubt that

the predominant purpose of the conspiracy was to

violate the exercise of a Constitutional right as I

have outlined it to you. (emphasis supplied).

The effect of such a “predominant purpose” charge

would be that if the jury found that the predominant

purpose of the conspirators was the solution of the San-

tiago slayings, it could not convict even if it found a

specific intent to deprive the suspects and witnesses of

their constitutional rights. While Guest and Screws re-

quire such a specific intent, they do not require that the

immediate intent to violate constitutional rights pre-

A-16

dominate over the ultimate purposes which that viola-

tion is designed to achieve. We hold that the court’s

charge on intent was proper and the requested charge

improper.

The defendants also contend that the court im-

properly referred in its charge to the absence of

Miranda warnings to suspects detained and interro-

gated for lengthy periods. No objection was made to

this part of the charge, and thus we can consider it only

as plain error. Fed. R. Crim. P. 52(b). The court

charged:

Although the right to arrest without a warrant and

length of time that a person may be detained all

implicate rights of constitutional dimensions,

under the charges on this indictment and the basis

on which the government is submitting the case to

the jury, as I understand it, there is no contention

that the arrests or the detention in and of them-

selves amounted to a violation of the United States

Constitution.

However, these are all matters of the overall

surrounding circumstances which the jury may

consider in determining whether there existed a

conspiracy to violate the Constitutional rights of

the various persons interrogated as charged in the

indictment.

Whether or not the police advised the suspects

of their so-called Miranda rights and warnings

about which there was considerable testimony

falls into the same category; as well as whether the

police denied persons access to an attorney or held

them incommunicado or continued questioning

them after persons refused to answer further ques-

tions. (3016-17a).

The testimony as to the lack of Miranda warnings

and the length of detention was presented as part of the

government’s circumstantial evidence of the existence

Gk,

A-17

of a conspiracy. In charging that the jury could con-

sider these matters as part of the overall surrounding

circumstances in determining whether the conspiracy

existed, the trial court did not commit plain error. The

charge made clear that the lack of Miranda warnings

and the length of detention were not in and of them-

selves the constitutional violations charged in the in-

dictment.

Defendants cite United States v. O’Dell, 462 F.2d

224 (6th Cir. 1972), for the proposition that it was plain

error to instruct the jury that it might consider these

factors in determining whether a conspiracy existed, in

that this allowed materials outside the scope of the

charge to be used by the jury in determining guilt or

innocence of the defendants. However, the O’Dell

court found that it was not error for the trial court to

instruct a jury on the nature of state laws since the

state law violations “could provide some evidence of

specific intent to deprive persons of [their civil] rights.”

Id. at 231. The error committed by the trial judge in

O’Dell was that he suggested to the jury that the state

law provided the standard for determining what rights

were protected by the federal statute in question. Id.

No similar error occurred here.

D. Immunization of Government Witnesses

The defendants contend tnet the grant of immun-

ity to two government witnesses was improper. That

contention as a ground for reversal is foreclosed by our

holding in United States v. Lewis, 456 F.2d 404, 410

(3d Cir. 1972), that defendants have no standing to

contest the propriety of grants of immunity to wit-

nesses testifying against them. They also contend that

the court erred in its charge to the jury on the effect of

an immunity grant upon a witness’ credibility. The

charge was substantially that given, and approved by

this court, in United States v. Fineman, 434 F.Supp.

A-18

197, 204 (E.D.Pa. 1977), aff'd, No. 77-1866 (3d Cir.

Feb. 1, 1978), and we approve it.

The court charged:

The testimony of an immunized witness

should be examined by the jury with care and with

greater care than that of an ordinary witness.

That is not to say that because testimony is

given by an immunized witness that it should be

completely rejected or completely accepted merely

because that witness had been immunized.

You may find that by reason of the immunity,

the likelihood of it being truthful and accurate is

lessened. On the other hand, you might conclude

that the fact that the person can’t be prosecuted for

what he may then be testifying to would make his

testimony more reliable or less li*ely to be false

than if he had not been granted irnmunity.

It’s for you to determine what weight to give

the testimony of all witnesses. (2973a-74a)

C. Duplicity

Defendants contend that Count I of the indictment,

on which they were convicted, is duplicitous. That con-

tention was not raised in the district court. Since the

defect of duplicity could have been cured before the

case was submitted to the jury, the contention should

not be considered now. Fed. R. Crim. P. 12(b)(2). But,

in any event, we do not find that Count I suffers from

the defect alleged. A duplicitous indictment is one

charging two separate crimes in the same count.

United States v. Starks, 515 F.2d 112, 116 (3d Cir.

1975). In this case a single conspiracy to violate civil

rights of several persons was charged.

A-19

III. CONCLUSION

The judgments of sentence will be affirmed.

Circuit Judge

APPENDIX B

A-23

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 78-1555/78-1560

UNITED STATES OF AMERICA

US.

ELLIS, JOHN, Appellant in No. 78-1555

CARTY, JAMES, Appellant in No. 78-1556

CURLEY, JAMES, Appellant in Ne. 78-1557

JONES, WILLIAM, Appellant in No. 78-1558

CROWN, JAMES, Appellant in No. 78-1559

McMILLAN, ROSEBOROUGH, Appellant in

No. 78-1560

(D.C. Criminal Nos. 77-00428-01-02-03-04-05 and 06)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: GIBBONS, VAN DUSEN AND ROSENN,

Circuit Judges

A-24

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Pennsylvania and was argued »y counsel on Decem-

ber 14, 1978.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgments of the

said District Court, filed April 24, 1978, be, and the

same are hereby affirmed.

Attest:

THOMAS F. QUINN, Clerk

March 13, 1979

= patel

Bn tin et PO ee es te

le a ek

om nem ei edem SUN Rae ar Sree

pean nana gADe sw cen en

APPENDIX C

A-27

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 78-1555, 78-1556, 78-1557, 78-1558, 78-1559 and

78-1560

UNITED STATES OF AMERICA

vU.

. ene Sed

ELLIS, JOHN, Appellant in No. 78-1555

(D.C. Crim. No. 77-00428-01)

: CARTY, JAMES, Appellant in No. 78-1556

(D.C. Crim. No. 77-0048-02)

; CURLEY, JAMES, Appellant in No. 78-1557

(D.C. Crim. No. 77-00428-03)

JONES, WILLIAM, Appellant in No. 78-1558

(D.C. Crim. No. 77-00428-04)

CROWN, JAMES, Appellar in No. 78-1559

(D.C. Crim. No. 77-00428-05)

McMILLAN, ROSEBOROUGH, Appellant in

No. 78-1560

(D.C. Crim. No. 77-00428-06)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER, WEIS,

GARTH and HIGGINBOTHAM, Circuit Judges

A-28

The petition for rehearing filed by appellants in the |

above entitled case having been submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the cir-

cuit in regular active service, and no judge who con- |

curred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.*

By the Court,

JOHN J. Gipsons, Circuit Judge

Dated: April 9, 1979

APPENDIX D

*Petitioner contends that the panel disregarded United States

v. Gallagher, 576 F.2d 1028 (3d Cir. 1978). On the contrary that

case sustains our disposition of the contentions respecting the pros-

ecutor’s arguments.

owe

A-3]

SUPREME COURT OF THE UNITED STATES

No. A-935

JOHN ELLIS, et al., Petitioners,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of coun-

sel for petitioner(s),

IT IS ORDERED that the time for filing a petition for

a writ of certiorari in the above-entitled cause be, and

the same is hereby, extended to and including June 8,

1979.

/s/ WM. J. BRENNAN, JR.

Associate Justice of the Supreme

Court of the United States

Dated this 27

day of April, 1979.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.