Petition — Acavino v. United States

Supreme Court brief1980

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ft Bpcome Court, U. . \

PIL ED |

9=1245 cfR 12 1980) =I

| MICHAEL RODAK, WR, CLERK. |

Gu the Supreme Gourt of the Gnited States

No. A-589

ANTHONY ACAVINO, PETITIONER

Vv.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE THIRD CIRCUIT

COURT OF APPEALS FOR REVIEW OF THE JUDGMENT ORDER

OF DECEMBER 13, 1979 AFFIRMING THE JUDGMENT OF CON-

VICTION AND SENTENCE OF FEBRUARY 7, 1979 IN THE UNITED

STATES DISTRICT COURT.

PETITION FOR WRIT OF CERTIORARI

ROBERT F. SIMONE

JAMES T. VERNILE

Attorneys for Appellant

1500 Robinson Building

Philadelphia, Pennsylvania 19102

(215) LO3-7005

TABLE OF CONTENTS

Page

TABLE OF CITATIONS : iii

DISCUSSION OF LOWER COURT

OPINIONS 1

JURISDICTIONAL STATEMENT 4

STATEMENT OF QUESTIONS

PRESENTED 7

SUMMARY OF FEDERAL CONSTI-

TUTIONAL AND STATUTORY

PROVISIONS IN ISSUE S

STATEMENT OF CASE 11

ARGUMENT

. THE TRIAL COURT ERRED

'¢ oO

IN ADMITTING INTO EVI-

DENCE NUMEROUS HEARSAY

STATEMENTS MADE BY PER-

SONS PURPORTING TO BE

CO-CONSPIRATORS OF THE

PETITIONER BECAUSE THE

STATEMENTS WERE NOT MADE

IN FURTHERANCE OF THE

CONSPIRACY. 19

IT WAS FRROR FOR THE

TRIAL. COURT TO SUBMIT

TO THE JURY A CONSPIR-

ACY INDICTMENT WITH A

FATALLY PREJUDICIAL

VARIANCE IN THAT THERE

WAS EVIDENCE OF SEVERAL

CONSPIRACIES RATHER THAN

THE SINGLE CONSPIRACY SET

OUT IN THE INDICTMENT 26

Page

III. THERE WAS INSUFFICIENT

EVIDENCE TO SUPPORT THE

VERDICT BECAUSE THE

PURPORTED OFFER TO BRIBE

A DRUG ENFORCEMENT OFFICER

WAS CONDITIONAL UPON EVENTS

OUTSIDE THE CONTROL OF THE

OFFICER OR THE PETITIONER.

SV. THE TRIAL COURT ERRED IN

ADMITTING UNFAIRLY PRE-

JUDICIAL EVIDENCE OF

OTHER CRIMES COMMITTED BY

THE PETITIONER.

V. IT WAS PREJUDICIAL ERROR

FOR THE ATTORNEY FOR THE

GOVERNMENT TO EXPRESS AN

OPINION CONCERNING THE

EVIDENCE AND SUCH ERROR

WAS COMPOUNDED BY THE

REFUSAL OF THE TRIAL COURT

TO GIVE CORRECTIVE INSTRUC-

TIONS,

JUDGMENT ORDER OF THE THIRD

CIRCUIT COURT OF APPEALS

DATED DECEMBER 13, 1979 FOR

WHICH CERTIORARI IS SOUGHT

CERTIFICATE OF SERVICE

TABLE OF CITATIONS

FEDERAL CASES

SUPREME COURT

Berger v. United States

29S OS. FO CEPI 5 8 tee ele ewe

Kotteakos v. United States

Pew GB. FOO CEO 0 ee eh ese

COURTS OF APPEAL

Bradley v. United States

4&3 7.20 L139 CO.6. THOR). eis

U.S. ex rel Lowry v. Myers

364 F.2d 297 (3rd Cir. 1970)....

United States v. Birnbaum

337 F.2d 490, 494-495

(tne Che. BOR ck se ces th ee

United States v. Bodey

547 F.2d 1363 (Sth Cir. 1977})....

United States v. Byrd

952 ¥.20 S76, 376 C1965). wc es

United States v. DiRodio,

$65 -F.26:579 (9th Cir...1977)....

United States v. James

$55. F.26- 992, SRP CAPT TD cc vend

United States v. Kessler

530 F.2d 1246 (5th Cir. 1976)....

United States v. Kravitz

261 ‘F.20 581, 3587.:¢3r4' Cir.

1960), cert. denied 364 U.S.

ot ee ee SS PR ee earn Se ee ee

iii

United States v. LeFevre

WR OEE. CEPR 6 io 5's snag

United States v. Moore

522 F.2d 1068, 1077

(9th Cir. 1975) cert.denied,

SS2 Use BOOP TROT) 6 ivy as ciees

FEDERAL DISTRICT COURTS

U.S. ex rel. Berkery v. Myers

eee 2 Supe. DG. Pa. €1967)....

FEDERAL RULES OF EVIDENCE

ee. ee) ren rs

Fed. R.Evid. 404(b).......:.......

Fed.R.Evid. 801(d)(2)(E).........

FEDERAL STATUTES

Se ES aes oh oko a Se ce es

ee es BO os cee ee Re

11 C.J.S. (Bribery) §2, p. 849....

TEXTS

1 Wharton's Criminal Evidence,

DE Wb-0 han 5 le Mae ee RAS UR

McCormick on Evidence

MONE, SCE ache S-ki> 4 055 4d 0 ai o-8 8

IV Weinstein's Evidence

§801(d) (2) (E)[01], p. 801-146...

43-4

DISCUSSION OF LOWER COURT'S OPINIONS

Petitioner seeks review by Writ of

Certiorari of the Judgment Order in the

Third Circuit Court of Appeals entered

December 13, 1979, and affirming the

Judgment of Conviction and Sentence of

two years imprisonment imposed by Honor-

able Louis C. Bechtle on February 6,

1979, on the indictment docketed 78-313-1

charging in a one count indictment four

defendants, including the Petitioner,

with conspiracy to bribe a Federal

agent in violation of 18 U.S.C.A. §201

and §371. The jury in the trial before

Judge Bechtle returned its guilty ver-

dict on February 6, 1979, whereupon

defense counsel in open court orally

asserted post trial motions the follow-

ing morning raising essentially three

exceptions to the verdict, as follows:

(a) insufficient evidence to

prove conspiracy, as a

;

result of improperly

admitted hearsay declara-

tions of co-conspirators,

fatal variance between the

limits of the conspiracy

pleaded in the indictment

and impossibility of per-

forming the alleged con-

spiracy or at least the

existence of conditions

beyond any defendant's

control which were neces-

sary for successful comple-

tion of the criminal acts.

(b) Prejudicial evidence of

other crimes.

the government attorney.

When Judge Bechtle then denied

those motions and imposed sentence at

that same proceeding, the Petitioner's

counsel filed a timely Notice of Appeal

in the Third Circuit. Appellate counsel

raised essentially the same three issues

as posed in the motion for new trial

although the argument in Appellant's

brief technically contained five excep-

tions to the verdict, and the Judgment

Order of the Circuit Court affirming the

conviction expressly recognized and rejec-

ted five distinct arguments proposed

by the Petitioner. In any case, the

first three arguments in the Appellant's

brief and the Judgment Order of Decem-

ber 13, 1979 issued by a panel contain-

ing Aldisert, Van Dusen, and Hunter,

Circuit Judges, are different aspects of

the single fundamental error which Peti-

tioner contends resulted from the Court's

improper interpreting and applying the

evidentiary rules resnecting hearsay,

both as to admissibility of declarations

by co-conspirators, failure to charge

as to the requisite elements of the

conspiracy offense; and denial of

ACAVINO's motion for new trial based

upon insufficient evidence of the Peti-

tioner's guilt.

1 adelante ine ~ be

JURISDICTIONAL STATEMENT

The Petitioner seeks review by this

Court of the Judgment Order of the Third

Circuit Court of Appeals dated Decem-

ber 13, 1979, (reproduced infra.) affirm-

ing the Judgment of Conviction and Sent-

ence imposed on the defendant in the

United States District Court for the

Eastern District of Pennsylvania on

February 7, 1979. The initial Judgment

of Conviction arose from a one count

indictment, Criminal No. 78-313-1, in

the Eastern District of Pennsylvania,

charging the defendant with violation

of the Federal Criminal Statute pro-

Scribing conspiring to bribe a federal

law enforcement officer [in violation

of 18 U.S.C.A. §201 and §371].

After denial of Post trial motions

by the Court by oral opinion delivered

when the motions were made in open

February 7, 1979. The

was docketed

Court on

timely appeal

in the Third Circuit Court of Appeals at

79-1322.

It should be noted that the Peti-

tioner filed with the Court certified

copies of the Third Circuit docket

entries at the time of the filing of a

Motion to Extend the Time lL

File The Petition For Certiorari which

was submitted and disposed of before

Justice Brennan. A copy of the Appendix

to the Brief of the Appellant filed in

the Third Circuit Court of Appeals is

submitted for filing with the forty

copies of this Petition for Certiorari

jin order to supply the District Court

pleadings for this Court's perusal.

The Supreme Court's appellate jurisdic-

tion in this matter rests upon 28

u.S.C.A.

§1254 which reads in pertinent part:

§1254. Courts of Appeals;

certiorari; a

’ e ° 2 .

questions ppeal; certified

Cases in the Cour

ts of A

pnd acing ag =: by the “dati

nt ar ate se gh methods:

fe) ertiorari

granted upon the Petiti

rn gprs to any civil or on

nal case, before or afte

rendition of judgment i

decrees.o» i

STATEMENT OF ISSUES PRESENTED

¥ WHETHER THE TRIAL COURT ERRED IN

ADMITTING INTO EVIDENCE NUMEROUS HEAR-

SAY STATEMENTS MADE BY PERSONS PURPORT-

ING TO BE CO-CONSPIRATORS OF THE .

DEFENDANT SINCE THE STATEMENTS WERE NOT

MADE IN FURTHERANCE OF THE CONSPIRACY.

II. WHETHER IT WAS ERROR FOR THE TRIAL

COURT TO SUBMIT TO THE JURY A CONSPIRACY

INDICTMENT WITH A FATALLY PREJUDICIAL

VARIANCE IN THAT THERE WAS EVIDENCE OF

SEVERAL CONSPIRACIES RATHER THAN THE

SINGLE CONSPIRACY SET OUT IN THE INDICT-

MENT.

III. WHETHER THERE WAS INSUFFICIENT

EVIDENCE TO SUPPORT THE VERDICT BECAUSE

THE PURPORTED OFFER TO BRIBE A DRUG

ENFORCEMENT OFFICER WAS CONDITIONAL

UPON EVENTS OUTSIDE THE CONTROL OF THE

OFFICER OR THE DEFENDANT.

IV. WHETHER THE TRIAL COURT ERRED IN

ADMITTING UNFAIRLY PREJUDICIAL EVIDENCE

OF OTHER CRIMES COMMITTED BY THE DEFEND-

ANT. S.

V. WHETHER IT WAS PREJUDICIAL ERROR

FOR THE ATTORNEY FOR THE GOVERNMENT TO.

EXPRESS AN OPINION CONCERNING THE EVID-

ENCE AND WHETHER SUCH ERROR WAS COM-

POUNDED BY THE REFUSAL OF THE COURT TO

GIVE CORRECTIVE INSTRUCTIONS.

SUMMARY OF THE FEDERAL STATUTES AND

CONSTITUTIONAL PROVISIONS AT ISSUE IN

THIS PROCEEDING

Essentially the prime source of

authority which Petitioner asserts in

support of his claim of error in the

trial is the Sixth Amendment to the

United States Constitution. More par-

ticularly, the Sixth pong ae guarantee

of the right to confront accusatory

evidence has been abridged in Petition-

er's case as a result of his convictions

being based substantial” y upon evidence

in the form of extrajudicial hearsay

declarations of his alleged co-

conspirators.

The requirement which is imposed

by the confrontation clause in respect

to determining the admissibility of

such hearsay declarations is systemati-

cally set forth in the provisions of

Federal Rule of Evidence §801(d)(2)(E).

This section provides for the requirement

that prior to the admission of hearsay

declarations, there need be independently

proved the membership in the conspiracy

of the defendant against whom the hear-

say declaration is sought for admission

as well as proof of the statement in

question having been uttered in further-

ance of the conspiracy's objective.

The Petition asserts as additional

basis for review of the Third Circuit's

Judgment Order of December 13, 1979,

the unfair and prejudicial decision by

the Trial Court to admit for considera-

tion by the factfinder the evidence of

other crimes committed by the defendant

under the exception as recited in Rule

404(b) which section codifies the tra-

ditional exception for admissibility

of other crimes when probative of plan,

scheme, design, etc.

eg eet =

’

ia se

Final argument in support of the

Petition arises from the comments of

the prosecutor during closing argument

in which he expressed personal opinions

as to the guilt of the defendant. The

essential authority cited for this pro-

position is codified in the provisions

of Section 5.8(b) of the ABA Standards

for the prosecution which has in turn

been adopted as authority in decisions

of several Circuits. It is respect-

fully submitted, however, that the

standard of proper deportment and ethics

that is recited in this section of the

ABA treatise ultimately rests upon the

Constitutional provision for supervis-

ion of the conduct of the Courts and

the officers thereof which is yet

another issue of Constitutional origin

and magnitude.

STATEMENT OF CASE

The Petitioner was indicted on

October 25, 1978, along with three other

persons. He was charged with conspiring

with them to offer a thing of value to a

public official to induce such public

official to do acts in violation of his

public duty, in violation of 18 U.S.C.

201. The Petitioner pleaded not guilty

and was tried separately from co-

defendants by a jury presided over by

the Honorable Louis C. Bechtle. The

jury returned a verdict of guilty. Post-

trial motions wer argued at the bar of

.the Court and orally, per Bechtle, J-,

_ were denied. Also, on February 7, 1979,

the defendant was sentenced to two years

of imprisonment. Notice of appeal was

filed on February 13, 1979.

The factual history relevant to the

charges in the indictment begins with

-—+-—-

Mr. Leonard Meadows, an informant in the

employ of the Drug Enforcement Adminis-

tration ("DEA"). On June 27, 1978, he

received a phone call from someone sub-

sequently identified as the Petitioner,

who indicated that on June 17, 1978,

agents of the DEA had raided a house of

some friends of his, and asked whether

or not anything could be done to help

his friends. Meadows responded that he

would contact the agent on the case and

make inquiries. On the next day the

Petitioner called again and told Meadows

he wished to give information to and

cooperate with the DEA. There was then

a face-to-face meeting at which the

Petitioner indicated that he was not

involved in the raid but was disinter-

estedly seeking to cooperate in order to

help his friends. Contact was made with

Agent Kean of the DEA, who indicated a

willingness to "work something shee for

these friends in return for cooperation.

As the result of these conversa-

tions, Agent Kean arranged a meeting

between himself, the defendant, and the

defendant's friends, which took place

on July 31, 1978. Kean met the Peti-

tioner first, who told him that he was

not "involved" in anything, "had nothing

to do with it" and that the Agent would.

have to speak to other persons who were

at that moment on their way to the meet-

ing. When the others, Aufierio, Gangemi,

and Sanatasi arrived, the Agent instruc-

ted the Petitioner to leave the area.

With the defendant gone, Aufierio offered

the Agent $20,000 to fix a narcotics

case (3rd Circ. Appendix p. 21).

Meadows testified that on August 2,

1978, conversations were had between

Meadows and the Petitioner about a Robert

- titans nem

Mucci meeting with Agent Kean to discuss

Kean's possible help in securing the re-

lease of a Mr. Bailey in return for cer-

tain monies paid to Kean by Mucci. Ina

taped conversation purportedly between

Meadows and the Petitioner on September 13,

1978, the person identified as the Peti-

tioner by Meadows discussed the possibi-

lity that certain of his friends would

provide money for certain action by Kean

in connection with Bailey. However,

the discussion was very nebulous and

hypotehtical because such action would

be ‘required of Kean only if and when

Bailey's appeal was approved. In the

words of the person whose voice was pur-

ported to be that of the defendant:

“That, that gets turned down, there's

no chance, they can't do nothing."

(Page 2, Government's Exhibit 2' tran-

script of tape on September ie 1978;

Appendix p. 28). Meadows testified that

several days prior to that conversation,

the Petitioner had indicated that the

payment for such cooperation, should it

be needed, would be $50,000.

Meadows testified that shortly after

he met Mucci for the first time at Peti-

tioner's garage. After ACAVINO walked

far enough away to be out of earshot,

Mucci and Meadows had a conversation

in which Mucci told Meadows that he would

pay Kean for his help in seeking the

release of his "partner," Bailey. Mea-

dows testified that the defendant took

no part in this conversation (Appendix

p. 11 et seq.)

On September 19, 1978, Meadows

called the Petitioner on the telephone.

During the conversation, Meadows and

the person whose voice was purported to

be the Petitioner's arranged for a meet-

saegs

ld eed >

ing on the following day between Agent

Kean, Mucci, the Petitioner, and Meadows.

(Government's Exhibit No. 4; transcript

of tape of September 19, 1978; Appendix

29). On the following day Meadows met

Mucci at a prearranged location. Peti-

tioner was not present. Meadows took

Mucci to meet Agent Kean near the

Federal Building. In a conversation

with Agent Kean, Mucci again offered

Kean money to help Bailey.

22).

(Appendix

On September 29, 1978, Meadows went

to Aufierio's house where he met Aufierio,

Gangemi, Mucci and the Petitioner. He

testified that Aufierio and the defendant

placed $5,000 on a table and asked him

to take the money to Agent Kean. He

declined, indicating that the money had

to go directly to Kean. As Meadows was

leaving, Aufierio made him a present of

a sweater anda hair dryer. After

Meadows had driven away in his automo-

bile, his female companion discovered

$5,000 in the sweater.

In another taped conversation, dated

October 2, 1978, Meadows informed a person

purporting to be the Petitioner that

Kean said that the $5,000 tendered was

insufficient. The listener replied that

he was not involved, that he had simply

made an appointment for Mucci, and that

he was “out of it." He said: "I'm done

with them after this. This last thing,

I'm done, getting my end and I quit."

(Government Exhibit 7; transcript of

tape on October 2, 1978; page 2; Appen-

dix 32). The voice said that Meadows

and Kean would have to look to Mucci

for money ... "Because I ain't got

nothing to do with this. I'm just

putting out a few bucks for these

ttn dae ee

people I ain't doing nothing with these,

you know." (Id., p. 7; Appendix 33).

ARGUMENT

I. THE TRIAL COURT ERRED IN ADMITTING

INTO EVIDENCE NUMEROUS HEARSAY

STATEMENTS MADE BY PERSONS PURPORT-

ING TO BE CO-CONSPIRATORS OF THE

PETITIONER BECAUSE THE STATEMENTS

WERE NOT MADE IN FURTHERANCE OF THE

CONSPIRACY.

Federal Rule of Evidence 801(d) (2)(E)

provides in pertinent part, that "A state-

ment is not hearsay if ... The statement

is offered against a party and is ... a

statement of a party during the course

of and in furtherance of the conspiracy."

The inclusion of the "in furtherance"

requirement ... "was motivated by a

desire to strike a balance between the

great need for conspirators’ statements

in combatting undesirable criminal acti-

vity which is inherently secretive and

difficult of proof and the need to pro-

tect the accused against idle chatter of

criminal partners as well as inadver-

tently misreported and deliberately fabri-

cated evidence."' IV Weinstein's

Evidence, Sec. 801(d)(2)(E)[01], p.

801-146.

The Courts have interpreted the

"in furtherance" requirement as being

protective of defendants and a shield

against the admission of unreliable

evidence. Casual admissions of culpa-

bility which in no way further the con-

spiracy or assist in achieving the con-

spirators' objectives are inadmissible.

United States v. Moore, 522 F.2d 1068,

1077 (9th Cir. 1975), cert.denied, 423

U.S. 1049 (1976). Gratuitous narrative

declarations which do no more than

place a defendant at a meeting, United

States v. DiRodio, 565 F.2d 573 (9th

Cir. 1977), or declare the defendant

to be a participant in a criminal en-

terprise, United States v. Birnbaum,

337 F.2d 490, 494-495 (2nd Cir. 1964),

are not "in furtherance" of conspira-

torial goals. The statement must be

made by the declarant in advancement

of the alleged partnership in crime,

and not a goal which is a "frolic of

his own." United States v. Kessler,

530 F.2d 1246 (5th Cir. 1976).

Instantly the Government introduced

a great volume of hearsay evidence sup-

posedly under the co-conspirator excep-

tion without such evidence satisfying

the "in furtherance" requirement. In

the seven taped conversations intro--

duced by the Government there are ex-

tensive declarations by the undercover

agent, Meadows. These statements are,

by definition, not "in furtherance" of

the conspiracy because Meadows, of

course, was not a co-conspirator but

involved in investigation of criminal

activities. The agency theory, which

holds that a person who joins with

others in a joint criminal enterprise

should be chargeable with what those

others say does not apply at all.

The admission of such testimony

gives the Government an unusual oppor-

tunity to present to the jury, through

its spokesman, a preconceived and struc-

tured counterpoint to what that spokes-

man considers most incriminating in the

accused's conversation. He can lead

the accused on to make incriminating

remarks and reinforce those remarks by

agreement and amplification. Mr.

Meadows, obviously an experienced prac-

titioner of this art, did not miss his

opportunity. The following are just a

few examples from the tapes:

"Do you say there's something

that I can make, to make some

money?" - (Government's Exhi-

bit 1, p. 2, Appendix 26).

"Now would they be willing

to front any money?" (Govern-

ment's Exhibit 2, p. 2; Appen-

Gis Zi).

"Well, how much money do you

think they would be, if he

be willing, if I can somehow

persuade him to go along with

it. How much do you think

they would put up front?”

(Government's Exhibit 2, p. 3;

Appendix 28).

The tapes are replete with obvious at-

tempts by Meadows, and in one tapem Kean,

to draw the Petitioner out and by lead-

ing questions to have him say things in

a way most beneficial to the Government's

case. This cannot be justified by the

co-conspirator exception or by any other

rule of law. These declarations were

not made “in furtherance" of conspira-

torial goals and were hence impermissible

hearsay.

The government also introduced tapes

of conversations between Meadows and

Thomas Aufierio, an alleged co-conspirator.

. ~~ eee + caratnn ntitgeiatredilaipll

These conversations were also objec-

tionable because of extensive reference

to subjects which were not listed in

the indictment as objects of the con-

spiracy, to wit, Aufierio's future

plans for drug operations. (Government's

Exhibit 5, p.4; Government's Exhibit 6,

p.4; Appendix 30 and 31). The indict-

ment stated that the object was to bribe

Agent Kean to take favorable action on

his investigation of the conspirators'

drug trafficking. It did not charge any

drug offense. Hence any statements by

Aufierio about his future drug opera-

tions were not "in furtherance" of the

stated goals of the conspiracy. Fur-

thermore, the only favorable action

requested in connection with Agent Kean's

investigation was as to the raid which

occurred on September 17, 1978. Speci-

fically, the conspirators allegedly

| SA 2 ee eRe,

sought identification of the informant

responsible for the raid. There was no

attempt to have Agent Kean protect

future operations. The statements made

by Aufierio were wholly outside the

scope of the conspiracy and constituted

a "frolic of his own."

See United States

v. Kessler, supra.

Zo |

II. IT WAS ERROR FOR THE TRIAL COURT

TO SUBMIT TO THE JURY A CONSPIRACY

INDICTMENT WITH A FATALLY PREJUDI-

CIAL VARIANCE IN THAT THERE WAS

EVIDENCE OF SEVERAL CONSPIRACIES

RATHER THAN THE SINGLE CONSPIRACY

SET OUT IN THE INDICTMENT.

When a conviction is obtained on

the theory that all defendants are mem-

bers of a single, all inclusive con-

spiracy although the proof at trial

shows multiple conspiracies, there is

a fatal variance between the indictment

and the evidence, and if prejudicial

to the accused, error is committed re-

quiring a new trial.

295 U.S. 78 (1935);

Berger v. U.S.,

Kotteakos v.

United States, 328 U.S. 750 (1946).

The necessity for distinguish-

ing between evidence which

tends to show a single overall

conspiracy and that which tends

to show several separate con-

spiracies...derives from our

interest, clearly our duty, in

jealously protecting those

accused from the possible

transference of guilty of

others accused, at least in

the eyes and minds of a jury,

which so often is claimed to

be encountered where en masse

prosecutions are undertaken

for a conglomeration of separ-

ate offenses. United States v.

Perez, 489 F.2d i! ra Cir.

, cert. denied, 417 U.S.

945.

The instant indictment lists one conspi-

racy with the following three objects:

1. It was an object of the

conspiracy that the defend-

ants and co-conspirators would

offer $50,000 to Special Agent

William B. Kean, III, of the

Drug Enforcement Administration

for him to provide information

or testimony that would enable

a convicted felon currently in

the custody of the Attorney

General, to wit, James Bailey,

to obtain a new trial on appeal.

2. It was further an object

of the conspiracy to induce

Agent Kean to provide additional

testimony at a second trial of

James Bailey that would result

in Bailey's acquittal.

3. It was further an object of

the conspiracy to induce Agent

Kean to obtain for the conspira-

tors a favorable outcome of an

investigation which the Drug

Enforcement Administration was

conducting into their illegal

trafficking in methamphetamine.

ee eee

Thus, the indictment concerns two en-

tirely separate projects: (1) helping

Bailey get out of prison, and (2) cover-

ing those persons involved in certain

drug operations. The first approach

of the defendant to Meadows involved

helping those involved in the raid of

September 17, 1978, by cooperation of

the authorities. A meeting is arranged

with Agent Kean. The Petitioner meets

Kean and tells him he is not involved,

but that the responsible parties are

on the way. The Petitioner leaves and

Aufierio and Gangemi arrive. They men-

tion for the first time the offer to get

Bailey out ,- much to Kean's surprise, as

it was evident that the Petitioner was

‘not involved with that project (Appendix

247.

Similarly, a meeting is arranged

between Mucci and Meadows. Only after

the Petitioner moves out of hearing

distance does Mucci inform Meadows that

Bailey is his partner and that he had

done Mucci a lot of favors. Despite

the fact that the Petitioner conveyed

information between Meadows on one hand

and Aufierio and Mucci on the other,

he does not appear to have been a parti-

cipant in the attempt to secure Bailey's

release. (Appendix 11-13). Indeed the

extent of his connection seems to be

providing certain monies to Mucci and

Aufierio. "I ain't got nothing to do

with this. I'm just putting out a few

bucks for these people." (Government

Exhibit 7; transcript of tape on Octo-

ber 2, 1978, p. 7; Appendix 33). Help-

ing Bailey seems to have been solely the

concern of Aufierio and Mucci. To lump

this discreet conspiracy along with

another, which involved seeking favor-

PRS

able action by Agent Kean in his inves-

tigation of drug trafficking, is pre-

judicial to the defendant in that it

uses his association with Aufierio and

Mucci to connect him with objectives

which he did not share with them.

III. THERE WAS INSUFFICIENT EVIDENCE

TO SUPPORT THE VERDICT BECAUSE

THE PURPORTED OFFER TO BRIBE A

DRUG ENFORCEMENT OFFICER WAS

CONDITIONAL UPON EVENTS OUTSIDE

THE CONTROL OF THE OFFICER OR

THE PETITIONER.

The Government introduced a tape

of a conversation between a person

alleged to be the Petitioner and the

informer, Meadows. In it, the person

purporting to be the Petitioner explains

what action is desired from Agent Kean

in favor of a convict identified as

James Bailey. It is made clear to

Meadows that assistance will not be

desired from Kean unless and until

Bailey's appeal is approved:

ACAVINO Just make any

opening that a

lawyer can get

out on a tech-

nicality.

SD1-40028 Ah huh, is it...

ACAVINO Any kind of an

opening

SD1-40028 Ahuh

ACAVINO If he can say

well I'm, I'm

not sure about

something, any

technicality. If

we can make a

deal, I know

Bailey will go

for it. But after

this is all over.

SD1-40028 Ahuh. Yea, well I

was talking him you

know, cause I

wanted to gat a

hold of him being

you know, he's not

here That's why...

ACAVINO We got to get. the

appeal approved

first

SD1-40028 Ahuh

ACAVINO As it is, they're

not going to ap-

prove it unless we

get help with it

ACAVINO Tell him they got

an appeal now, this

is his last appeal

before the Supreme

Court

SD1-40028 Ahuh

ACAVINO That, that gets

turned down, there's

no chance, they

can't do nothing.

[Government's Exhibit 2; Tran-

script of tape of conversation

on September 13, 1978, pp. 2-3;

Appendix 27 and 28].

Conspiracy is a crime which requires

specific intent. If the object of that

conspiracy is conditional or specula-

tive the mental state of the conspira-

tors can rise no higher than expecta-

tion or hope that, should circumstances

change, their objects might be achieved.

In such a case it cannot be said that

the conspirators have a present inten-

tion to effectuate the goals of the

criminal enterprise. Any money given

or promised in such a situation cannot

be said to be tendered with the intent

of influencing an official's action, but

can, at most be construed to gain his

favor for future cooperation.

Although there is little law on this

precise subject, some illumination is

provided by the following:

In some jurisdictions, it is

required that the officer be

influenced in respect of a

specific matter coming within

his official duties and then

pending. Thus an offer made

to a person in contemplation

of a mere probability that he

may be galled to perform

official functions, and in-

tended to influence his con-

duct in performance of such

functions if he shall be so

called, does not violate a

Statute relating to bribery

of persons performing an offi-

cial function. [11 C.J.S.

(Bribery) Sec. 2, p. 849.]

It cannot be said that such doctrine is

illogical, particularly in a case like

the instant one, where the offer is en-

tirely conditional upon the occurrence

of future events.

IV. THE TRIAL COURT ERRED IN ADMITTING

UNFAIRLY PREJUDICIAL EVIDENCE OF

OTHER CRIMES COMMITTED BY THE

DEFENDANT.

Federal Rule of Evidence 404(b)

states as follows:

Evidence of other crimes,

wrongs, or acts is not ad-

missible to prove the char-

acter of a person in order

to show that he acted in

conformity therewith. It

may, however, be admissible

for other purposes, such as

proof of motive, opportunity,

intent, preparation, plan,

knowledge, identity, absence

of mistake or accident.

Legislative history of the rule indicates

that it countenances admission of “bad

acts" evidence that is relevant to any

issue in the case, "except to show the

likel‘‘iood that, having once fallen into

sin, a second slip is likely." United

States v. James, 555 F.2d 992, 999 (1977).

The proponent of such evidence must show

that its probative values outweigh its

prejudicial effect. United States v.

James, 555 F.2d 999, Bradley v. United

States, 433 F.2d 1113 (D.C. 1969). This

requirement is embodied in Fed.R.Evid.

403:

Although relevant, evidence

may be excluded if its pro-

bative value is substantially

outweighed by the danger of

unfair prejudice, confusion

of the issues, or misleading

the jury, or by conciderations

of undue delay, waste of time,

or needless presentation of

cumulative evidence.

In deciding whether to admit such evidence

the Court must carefully weigh both fac-

tors: probative value and prejudice.

The exercise of discretion

must be addressed to a bal-

ancing of the probative

value of the proffered evid-

ence, on the one hand,

against its prejudicial char-

acter, on the other. The pro-

bative value is measured by

the extent to which the evi-

dence of prior criminal acti-

vities, other than a convic-

tion, closely related in time

and subject matter, tends to

establish that the accused

committed the criminal act

charged in the indictment

knowingly or with criminal

intent or tends to negative

the claim that the acts were

committed innocently or

through mistake or misunder-

standing. [United States v.

Byrd, 352 F.2d 570, 574 (1965)]

Moreover, in gauging the element of pro-

bative value, perhaps the most signifi-

cant feature is the necessity for the

evidence - whether in light of other

evidence available to the government on

that specific issue and the danger of

undue prejudice, the "bad acts" evidence

is necessary, McCormick on Evidence, 2nd

Ed., Sec. 190; 1 Wharton's Criminal Evi-

dence, Sec. 237.

The importance of properly balancing

these factors cannot be minimized. Bann-

ing prejudicial evidence of other crimes

is not merely a technical Hike but a

principal which, while not necessarily

rising to constitutional proportions,

arises out of fundamental demand for

v. Myers, 364 F.2d 297 (3rd Cir. 1970);

U.S. ex rel. Berkery v. Myers, 242 F.

Supp. D.C. Pa. (1967). The Court's

action may well decide the case in the

government's favor, despite limiting

instructions.

It is generally recognized

that there can be no com-

plete assurance that the

jury even under the best of

instructions will strictly

confine the use of this kind

of evidence to the issue of

knowledge and intent and

wholly put out of their minds

the implication that the

accused, having committed

the prior similar. criminal f

acts probably committed the

one with which he is actually

charged. U.S. v. Byrd, 352

F.2d 574. 2

At the outset of this case, counsel

brought to the Court's attention the in-

tention of the Government to introduce

evidence of illegal drug trafficking of

the Petitioner to show his motive for

seeking to bribe Agent Kean. Counsel

indicated that he would object to the

introduction of such evidence and the

Court indicated the objection would be

overruled. Counsel then offered to

stipulate that Petitioner was an object

of an investigation involving narcotics.

(Appendix 8). The Court replied that

such a stipulation would be "grossly

bland" and not sufficient for the Govern-

ment 's purposes, although he promises to

restrain the Government from going into

"raptures about accusations." (Appendix

9-10). It is submitted that the Govern-

ment did go into "raptures" about drugs.

There can be no question that the Govern-

ment imported a second trial into this

conspiracy matter - the case of Anthony

Acavino, drug trafficker. His friends

had been subjected to a drug raid. He

offers to give someone a "pound" of

drugs. He is involved in plans for manu-

facture of new drugs. His alleged co-

conspirators, Aufierio, Mucci, etc.,

constantly talk about drugs. The jury

was subjected to a constant barrage of

this evidence over the continuing objec-

tion of counsel.

Necessity, as mentioned above, is

the key factor to be considered in the

admission of this evidence. In light

of counsel's offer to stipulate that

Petitioner was, at the pertinent time,

an object of an investigation for deal-

ings with drugs, it is clear that the

admission of the tremendous volume of

evidence of this kind was wholly unnec-

essary. Counsel could very easily have

placed a stipulation before the Court

which would have informed the jury of

Petitioner's activities in sufficient

detail to make them cognizant of a

possible motive in seeking to bribe Agent

Kean. The Government was certainly

entitled to have some evidence before the

jury on motive, but it was the duty of

the Court to ensure that this evidence

was as limited as possible under the cir-

cumstances. Its rejection of any stipu-

lation as being too "bland" and its fail-

ure at any point to check the constant

flow of insinuation was an abuse of dis-

cretion.

V. IT WAS PREJUDICIAL ERROR FOR THE

ATTORNEY FOR THE GOVERNMENT TO

EXPRESS AN OPINION CONCERNING THE

EVIDENCE AND SUCH ERROR WAS COM-

POUNDED BY THE REFUSAL OF THE TRIAL

COURT TO GIVE CORRECTIVE INSTRUC-

TIONS.

The identity of persons whose voice

is recorded on tape is, of course, a fact

at issue which they jury must decide. For

the prosecution to voice an opinion on

who the persons on the tape are is clearly

an invasion of the jury's function. The

attorney for the Government, in introduc-

ing tape G-7, informed the jury that the

tape was a conversation between the

defendant and an informant. (Appendix

14-15). Counsel objected and moved for

a mistrial. His suggestion for correc-

tive instruction, to the effect that the

statement should be completely disregarded,

was not accepted, and the Court told the

jury that they could consider the state-

ment for the purpose of identification.

(Appendix 19). Counsel renewed his

request for corrective instructions at

the conclusion of the Court's final

charge to the jury and was again refused.

(Appendix 24-25).

"A United States attorney in a cri-

minal case has ever greater responsibi-

lity than counsel for an individual

client. For the purpose of the indivi-

dual case, he represents the great auth-

ority of the United States and must exer-

cise that responsibility with the cir-

cumspection and dignity the occasion

calls for."" United States v. Kravitz,

281 F.2d 581, 587 (3rd Cir., 1960). cert.

denied, 364 U.S. 941 (1961). In further-

ance of this high standard of conduct for

United States attorneys, the Third Cir-

cuit Court of Appeals has adopted Stan-

dard 5.8(b) of the A.B.A. Prosecution

Standards (United States v. LeFevre,

483 F.2d 477 (1973)). That standard

declares:

It is unprofessional conduct

for the prosecutor to ex-

press his personal belief

or opinion as to the truth

or falsity of any testimony

or evidence of the guilt of

the defendant.

For the attorney for the Government

to arrogate to himself the fact finding

function reserved for the jury on a cru-

cial element -- the identity of the voice

of the defendant -- is clearly an impro-

per expression of opinion. The represen-

tative of the Government is naturally

regarded with great respect by the jury.

For him to capitalize on his status by

making unwarranted statements expressing

his personal belief about facts at issue

in the case is unprofessional conduct.

While it has been held that an improper

expression of opinion by the Government

attorney concerning facts at issue can

be cured by proper corrective instruc-

tions, [See United States v. Bodey, 547

F.2d 1383 (9th Cir. 1977)] The Court

twice refused to instruct the jury to

completely disregard those remarks.

CONCLUSION

It is respectfully submitted for

the foregoing reasons, that the Judgment

Order of the Third Circuit Court be sub-

ject to review by this Court's Writ of

Certiorari.

Respectfully submitted,

\ \

oh are Cees ‘ \ \

OE ow te, Oe

ROBERT F. SIMONE, ESQUIRE

Attorney for Petitioner

JUDGMENT ORDER OF THE THIRD CIRCUIT

COURT OF APPEALS DECEMBER 13, 1979

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-1322

UNITED STATES OF AMERICA

vs.

ACAVINO, ANTHONY,

Appellant

Appeal from the United States District Court

for the Fastern District of Pennsylvania

(D.C. Crim. No. 78-00313-01)

Submitted Under Third Circuit Rule 12{6)

December 13, 1979

ALDISERT, VAN DUSEN and HUNTER, Circuit Judges.

Before:

JUDGHENT ORDER

After considering the contentions raised by appellant,

to-vit, that (1) the court erred in admitting into evidence

numerous hearsay statements made by persons purporting to be

coconspirators of the appellant because the statements were not

made in furtherance of the conspiracy, (2) it was error for the

court to submit to the jury a conspiracy indictment with a fatal

prejudicial variance in that there was evidence of several

conspiracies rather than the single conspiracy set out in the

indictment, (3) there was insufficient evidence to support the

verdict because the purported offer to bribe a drug enforcement

JUDGMENT ORDER OF THE THIRD CIRCUIT

COURT OF APPEALS DECEMBER 13, 1979

officer was conditional upon events outside the control of the

officer or the appellant, (4) the court erred in admitting unfair

prejudicial evidence of other crimes committed by the appellant,

and (5) it was prejudicial error for the attorney for the

government to express an opinion concerning the evidence and such

error was compounded by the refusal of the court to give

corrective instructions; it is

ADJUDGED AND ORDERED that the judgment of the district

court be and is hereby affirmed.

BY THE COURT,

Circuit Judge

[ee

Ce Ee pete

as F Quinn, Clerk

NALD: DEC 13 1979

CERTIFICATE OF SERVICE OF

THE PETITION FOR CERTIORARI

PURSUANT TO RULE 33 OF THE

RULES OF THE UNITED STATES

SUPREME COURT

ROBERT F. SIMONE, Esquire, being

duly sworn according to law, deposes

and says that he is counsel for the

Petitioner, as well as a member of the

Bar of the United States Supreme Court,

and that copies of the attached Peti-

tion for Certiorari were served by

depositing them in the United States

mail, with first class postage, addressed

as follows:

Thomas J. McBride, Esquire

Assistant U.S. Attorney

3310 U.S. Court House

601 Market Street

Philadelphia, Pa. 19106

Office of the Clerk

U.S. Court of Appeals

for -he Third Circuit

21400 U. S. Court House

601 Market Street

Philadelphia, Pa. 19106

sth laa cn caer te

DATE: <2 ff =

Honorable Louis C. Bechtle

U.S. District Court

2722 U.S. Court House

601 Market Street

Philadelphia, Pa. 19106

Honorable Wade H. McCree, Jr.

Solicitor General of the

United States

Department of Justice

Washington, D.C. 20539

Member, U.S. Supreme Court

Bar

, f

‘ é

ee ee

GENERAL DOCKET

os PEALS

UNITED STATES COUR™ OF AP

THE

FOR cur CIRCUIT

y CASE NO.

UU 79-1322

OF PENNSYLVAN

reat EASTERN DISTRICT

ATTORNEYS FOR APPELLANT

TITLE OF CASE

Robert F. Simone

UNITED STATES OF AMERICA

vs.

as ys picuay ATTOANEYS FOR APPELLEE

Thomas J. McBride

Nosmow: D.C. Crim. No. 78-00313-0

2 amow: Louis C. Bechtle

ex 3

Dars or Jupcuxer: A

|OTICR OF AFTEAL FLED: ruary 12, .

" . oad Ay C. October 25, 1978 _ - —_

Commen °

ACCOUNT OF APPELLANT

DATE Reow bursed

1979 Be

Clerk's fees F

March 12

s2t-

¥-s9.» Oe. WP 6 ie hs & 0 BAe 16

3-19-94

GENERAL DOCKET

UNITED STATES Courr OF APPEALS

FOR THE

THIRD CIRCUIT

FILINGS—PROCEF DINGS

Fred

Clerk's letter

1979 ar 9:45

» Teceived February 20, 1979" filed, Tn

y 35, 1979, filed. (Paper No, 8 nor included).

thar if the franscripr 18 desireg and has nor been filed, i¢

forthwith, with the Proper @trangements for Payment to be

this Order, whichever is later; directing *ppellee's brief be

4 within 2) days after 4ppellant's brief and the *ppendix are

Specified by the Courr, filed

Simone, Esquire, counsel for *Ppellant, to Order to Show Cause,

ervice attached.

» “Titten et the 4irecrion of the Court, to Robert F, Simone, Esq.,

@.m., in the United States Coure of Appeals Courtroom in Phila., Pa.

to pay a fine of $250.00 10 days from the date of this Order, filed,

Sepr. 26 Order (Clerk) &ranting the above Motion and directing that no further extensions

will 8icnted, filed

Oct. 9 Brief for *ppellee, filed. (7 s 1 b

i Rule 12(6) without

Dec. 13 Subsirred on ssp.

D) directing that cas POSition Pursuant to

Ora) *Tpunent, filed. |

c oe ae = & Hunter ae c

asa i nt GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE

CIRCUIT

CASE NO. 79-1322 |

PAGE TWO

973°T } FILINGS—PROCEEDINGS Filed

Dec. 13 Judgment Order (Aldisert, Van Dusen and Hunter, C.J.) affirming the judgment of the

district court, filed.

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.