Petition — Balano v. United States
Supreme Court brief1980
Ask Donna
What actually matters in this document.
Text
In the Supreme Court of the United States
October Term, 1979
PHILLIP R. BALANO,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS,
TENTH CIRCUIT
JoHN C. HUMPAGE
HuMPAGE, BERGER AND HOFFMAN
314 West Seventh Street
Topeka, Kansas 66603
Phone: (913) 235-5351
Attorneys for Petitioner
E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
SUBJECT INDEX
pn taenin eee oiein ch Sear eM EN / DOr cre Pe
ee apc es Ren
Constitutional and Statutory Provisions Involved ........
0 ie
I.
II.
ITI.
IV.
The Court of Appeals Decision Directly Con-
flicts With Principles Enunciated by This
Court in a Long Line of Cases As to Waiver
of.a Constitutional Right 2200020.
The Defendant Was Improperly Convicted
Without Any Evidence Whatsoever That He
Knew That the Underlying Crime Required
Under 18 U.S.C. §3 Had Been Committed and
Upon Entirely Inadequate Proof and, in Ad-
dition, Was Properly Chargeable Only Under
DP RUE sccitncidamciemsaaceadasnchiaaa naan
The Trial Court Erred by Not Granting De-
fendant’s Motion for Judgment of Acquittal at
the Close of the First Trial 200000000...
The Indictment Did Not Include Any Refer-
ence to the Time of the Alleged Offense and
Therefore Did Not Allege a Crime ..............
GaN i ccseceretinssaniicntviannsacdeshieinegh aa aac
Index to Appendices
Appendix A — Opinion of the United States Court of
mppenie, Tenth Cirewlt ...n...ccc
Appendix B — Order of the United States Court of Ap-
peals, Tenth Circuit, Overruling the Petitioner’s Pe-
tition for Rehearing En Bane 2000000...
Appendix C — Opinion of the United States District
Court for the District of Kansas 0
11
17
22
25
26
Al
Il
TABLE OF AUTHORITIES CITED
CASES
Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct.
EE RUE TOE CREED ocasscniniaccckcsnrsuncdacensneereenacns 23
Banks v. Chicago Grain Trimmers Association, 390 U.S.
459, 465, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968) 0.000000... 19
Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d
I ih oss sons ocnensbineheassdieveneoeaccnieleoacsaaieilees 12
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.
I a ae 14
Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402,
I i a De 18
Bouie v. Columbia, 378 U.S. 347, 362-63, 84 S.Ct. 1697,
12 L.Ed.2d 894 (1964) (quoting United States v. Wilt-
berger, 5 Wheat. 76, 96, 5 L.Ed. 37 (1820) (op. by
ne oui dco aioe: 19
Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.
TE ORR eerie SoC A ui al a s: 12-13
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57
sida ninltaasica dbname ee 23
California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26
I I in ccssinsncsia ed abionsgsonladubldimedticuecnmeered 12
Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.
I src cssvorenesiamiinningitiasaiias easdusinianbicla nna 12
Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13
MD GPE CEU) ovccccnnccesscssccccscasaccsersorserteciecctaccencceaneees. 12
Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210,27 L.Ed.2d
Ne i rasccnchaidhlaiialltiehscansicadianinietidclcoe eee 12
Fuentes v. Shevin, 407 U.S. 67, 95, 92 S.Ct. 1983, 32
MM WO CIDER) oon iccccceccnceccsccessacececossscsassossascurcocnereonee, 15
Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457,
86 L.Ed. 680 (1942)
III
Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.
| eats a Seat Re eat Seto eS ee ee ae 23
Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25
L.Ed.2d 353, reh. den., 398 US. 915, 90 S.Ct. 1684, 26
tL RIOR Net, SMAI 7 5 OCR RE Le ae aE os 14
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.
ca TESS NES TSANG IPE HI A ARNE Cay PPE TS eT EAS DID 13
Ledbetter v. United States, 170 U.S. 606, 612, 18 S.Ct.
ce a | en a ee 25
Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.
I cities ieee he 12, 13, 14, 15
Mattox v. United States, 156 U.S. 227, 15 S.Ct. 357, 39
UN I ID aie a on A a: 12
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.
Cbs Re rie ER CNT ee 12
Skelly v. United States, 75 F.2d 483 (10th Cir. 1935),
cert. den., 295 U.S. 757 (1935) .o.n..ceceeccccccscccccscecececeseees. 21
Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93
Cae a 14
Uphaus v. Wyman, 360 U.S. 72, 79, 79 S.Ct. 1040, 3 L.
eS Fann Tn PUL Es Te ee ee 21-22
United States v. Feola, 420 U.S. 671, 685, 95 S.Ct. 1255,
DD Rat OEE (TOT Y oan ccscc icc cvcccssevecsecnessaneosceesesessce,sce. 18, 20
United States v. Garner, 574 F.2d 1141 (4th Cir. 1978),
cert. den., 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333
SRD <aanetinncdbldasadccseatadtasy ahunamearkeec abot ee 12
I ekiisceentsectectin nena eae 63. 23
United States v. Martin Linen Supply Co., 430 U.S.
564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) 0. 23
United States v. West, 574 F.2d 1131 (4th Cir. 1978) ....11-12
IV
STATUTES AND RULES
Mie CUBE, PAmMOU, VE anc ccncscnecsececouseeescosesescees.cen.., 3
PET coe ec ae ee | Atlee 2X 4,17,18
yf) tte, OEE aan Pe 2, 3, 4,17, 18, 19, 21, 22, 25
Me UA O80) ...... ibainilenbibbsnaekevaneehtebibanincigagesaebbeiberelinatieadacete. 19
IS 4,19
I 25
re rR 2
ie ah) th AE ACE 23
MISCELLANEOUS
22 C.J.S. Criminai Law $97, 276 .......... RO AA AE Os ae 22
In the Supreme Court of the United States
October Term, 1979
PHILLIP R. BALANO,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS,
TENTH CIRCUIT
TO: The Honorable Chief Justice and Associate Justices
of the United States Supreme Court:
The petitioner, Phillip R. Balano, prays that a writ
certiorari be issued to review the judgment of the United
States Court of Appeals for the Tenth Circuit sustaining the
conviction of the petitioner as an accessory after the fact
to interstate transportation of stolen goods by the use of
grand jury testimony of a convicted participant in the crime
who refused to testify at trial.
| i)
OPINIONS BELOW
The opinion of the United States Court of Appeals, as
yet unreported, appears as Appendix A, the Court’s Order
denying the petitioner’s Petition for Rehearing En Banc on
May 20, 1980, is attached as Appendix B, infra. The United
States Court of Appeals for the Tenth Circuit affirmed the
judgment of the United States District Court for the District
of Kansas. Appendix C.
JURISDICTION
The judgment of the United States Court of Appeals
for the Tenth Circuit was entered on December 18, 1979.
See Appendix A, pp. Al-18, infra. The petitioner’s Petition
for Rehearing and Suggestions for Rehearing En Banc
was denied on May 20, 1980. This Petition for Certiorari
being filed less than thirty (30) days thereafter. The
jurisdiction of this Court is invoked under 28 U.S.C.
§1254(1).
QUESTIONS PRESENTED
The petitioner was convicted by a jury of being an
accessory after the fact to the interstate transportation
of stolen property in violation of 18 U.S.C. $3 because he
provided a razor and a place to shave to an individual
who had previously robbed a coin shop. At the trial,
the prosecution was permitted to introduce grand jury
testimony of one of the robbers against the petitioner and
such evidence was the primary basis for the conviction.
The trial court and the Court of Appeals found that the
petitioner had waived any objection based upon his con-
stitutional right of confrontation. The questions thereby
arising are:
3
1. Whether the government may introduce the grand
jury testimony of a crucial witness who has refused to
testify at trial on the basis that the defendant has waived
his Sixth Amendment right to confrontation by coercing
the witness not to testify when the witness’ sworn grand
jury testimony refutes the existence of the threat that
served as the basis for the finding of waiver and the
witness’ unsolicited letter to the defendant’s counsel cor-
roborating that the threat was nonexistent?
2. Whether a defendant may be convicted as an
accessory after the fact without any knowledge of the
underlying crime and upon proof that his entire involve-
ment with the crime was in providing a razor and a place
to shave a light mustache to one of the perpetrators while
the perpetrators were in the process of escaping from
the authorities?
3. Whether double jeopardy prohibits the prosecution
from trying a criminal defendant a second time after a
mistrial in the first trial when the prosecution failed to
present adequate evidence, as a matter of law, in the
first trial?
4. Whether an indictment under 18 U.S.C. §3 must
indicate that the underlying offense occurred within the
applicable period prescribed by the statute of limitations?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Constitution of the United States, Amendment VI.
In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
ae
18 U.S.C. §2.
Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.
Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
18 U.S.C. 33.
Whoever, knowing that an offense against the United
States has been committed, receives, relieves, comforts or
assists the offender in order to hinder or prevent his appre-
hension, trial or punishment, is an accessory after the fact.
Except as otherwise expressly provided by any Act
of Congress, an accessory after the fact shall be imprisoned
not more than one-half the maximum term of imprison-
ment or fined not more than one-half the maximum fine
prescribed for the punishment of the principal, or both;
or if the principal is punishable by death, the accessory
shall be imprisoned not more than ten years.
STATEMENT OF FACTS
This is an appeal from the second trial in this case.
The first resulted in a hung jury, the second in a convic-
tion finding the defendant guilty of one count of accessory
after the fact to interstate transportation of stolen goods;
the Trial Court, at the conclusion of the first trial, sus-
taining the defendant Balano and Rosen’s Motion for
Judgment of Acquittal to Count III of the Indictment
alleging violations of 18 U.S.C. §2314 and 18 U.S.C. §2.
(R.Vol. II, 352.)
Count II of the indictment alleged that the defendant
and one Saul Rosen, knowing that two individuals, Dom-
5
inick J. Carullo and James E. Johnston, had previously
robbed a coin shop and that the two had transported coins
stolen from the shop in interstate commerce, provided
“new clothing to replace the clothing used in the above
mentioned crime, did provide Dominick J. Carullo shaving
equipment and lavatory facilities in order for the said
Carullo to shave off his mustache and beard, and did
provide Dominick J, Carullo and James E. Johnston, a/k/a
Sonny, a suitcase in which to hide the stolen gold coins,
all for the purpose of aiding and assisting said Dominick
J. Carullo and James E. Johnston, a/k/a Sonny, to escape
apprehension for trial and punishment.” (R.Vol. I, 2.)?
Count I alleged that one Sam Bernstein aided and
abetted Carullo and Johnston to rob the coin shop. (R.Vol.
I, 1.) Carullo was also charged in a separate indictment
with interstate transportation of stolen property. (R.Vol.
V, 291.) Carullo pleaded guilty and was sentenced to
five years in prison. Id. He was also granted immunity
for his testimony before the grand jury as to the crime
in question. (R.Vol. V, 292.) James Johnston, the other
robber, also pleaded guilty and was sentenced to five
years in prison. (R.Vol. IV, 79.) After the first trial in
this matter, Count II of the indictment against Rosen was
dismissed because of his death. (R.Vol. III, 350.) At the
time of trial, the case against Bernstein had been severed
from that against the defendant Balano. (R.Vol. VI, 425.)
The robbery occurred on April 13, 1974. (R.Vol. III,
52-54.) The indictment was not issued until April 7, 1976.
(R.Vol. I, 3.) The initial trial in the case was conducted
in October 1976. (R.Vol. II, 352.) At the close of all the
evidence in the case, the defendant Balano filed a motion
for judgment of acquittal as to Count II, which was
1. References are to pages of the record before the Court
of Appeals.
6
denied. (R.Vol. II, 352.) Ten days after the mistrial, the
defendant filed a renewed motion for judgment of acquit-
tal, which was denied on February 3, 1977. (R.Vol. II,
352.) Thereafter, the defendant was tried a second time,
beginning on December 13, 1977. (R.Vol. II, 355.) The
jury returned a verdict of guilty at the close of the trial,
on December 19, 1977. (R.Vol. II, 355.) Balano made a
motion for judgment of acquittal at the close of the evi-
dence in the case and renewed that motion on January 9,
1978. (R.Vol. II, 355.) The trial court denied the motion
on both occasions. (R.Vol. II, 355.) On March 15, 1978,
the defendant was sentenced to pay a fine of $2,500 and
five years imprisonment, which was suspended. This
appeal followed. (R.Vol. II, 328.)
The defendant was a partner with Saul Rosen in a
business known as Sol’s Loan Office in Kansas City,
Kansas. (R.Vol. VI, 339.) The prosecution claims that the
defendant unlawfully assisted the two individuals who
robbed the Mission Coin Shop on April 13, 1974 and later
that day came to the loan office in an attempt to sell
the coins stolen in the robbery, (R.Vol. I, 2.) James E.
Johnston, one of the two robbers, testified that one Samuel
Bernstein initially suggested the robbery when Johnston
and Carullo visited Sol’s Loan Office for the purpose of
buying a shotgun. (R.Vol. IV, 82-83.) Bernstein was an
employee of the loan shop at the time. (R.Vol. IV, 84.)
But the prosecution was unable to show that Balano was
present at the time of the conversation, (R.Vol. IV, 86.)
Moreover, the prosecution’s evidence showed that Bernstein
had instructed Carullo only to contact him personally if
they robbed the coin shop. (R.Vol. IV, 87.)
Thereafter, Carullo and Johnston “cased” the coin shop
and then robbed it. (R.Vol. IV, 88-92.) The owner of
the shop described Carullo as very heavyset with long
black hair. (R.Vol. IV, 51.) The owner of the coin shop
7
also testified that Carullo had no mustache to speak of
and that it was sporadic “like baby black spots.” (R.Vol.
IV, 52.)
After the robbery, which occurred in Johnson County,
Kansas, the robbers drove across the state line into Kansas
City, Missouri, (R.Vol. IV, 92-94.) They parked the get-
away car in Missouri and then hailed a cab, which took
them to a location on the Kansas side near to Sol’s Loan
Office. (R.Vol. IV, 94-94.) The taxi driver did not recall
the appearance of either Johnston or Carullo, but did
testify that neither had any blood on him. (R.Vol. V, 266.)
Johnston testified that he had a few spots of blood on him
but that Carullo had none on him. (R.Vol. IV, 97.)
Jchnston testified that when they arrived at the loan
shop, both Saul Rosen and the defendant Balano were
present in the store. (R.Vol. IV, 98.) Balano denied that
he was present. (R.Vol. VI, 345.) Johnston testified that
Rosen ushered Carullo into an office. (R.Vol. IV, 99.)
Rosen then told Johnston to wash the spots of blood off
his face. (R.Vol. IV, 99.) When Johnston went into the
bathroom he noticed he had some blood on his clothes
and, upon returning, asked Rosen if he could change into
some clothes from the front of the store; Rosen acquiesced.
(R.Vol. IV, 99.) At the time, Balano was in the office
with Carullo. (R.Vol. IV, 99.)
About the time Rosen returned from the bathroom,
Carullo stepped out of the office and stated that he thought
he had been shot in the hip. Carullo then went into
the restroom to look at his leg and, according to Johnston,
Balano also looked, (R.Vol. IV, 100.) Upon checking.
Carullo discovered only a scratch caused by a piece of
glass in his leg. He then indicated to Balano that he
would like a razor to shave with. (R.Vol. IV, 100.) Balano
provided the razor, which Carullo used to shave. (R.Vol.
8
IV, 101.) Carullo also indicated, in the presence of Rosen
and Balano, that he wanted some clothes to change into.
(R.Vol. IV, 100.) Rosen responded that the store had
a shirt that might fit but no pants. (R.Vol. IV, 101.)
Johnston did not testify, however, that any clothes were
provided to Carullo.
Bernstein was not present in the store when Carullo
and Johnston arrived. (R.Vol. IV, 102.) After shaving,
Carullo arranged for him and Johnston to be picked up
and taken to a car lot in Independence. (R.Vol. IV, 102-
03.) Johnston also testified that Balano and Rosen had
both indicated that they did not believe they had enough
money in the store to purchase the coins on that day.
(R.Vol. IV, 103.) However, he did not testify as to any
knowledge that either had or any statement that either
made as to the value of the coins.
Before leaving the store, according to Johnston, he
and Carullo took a suitcase that was for sale in the store
and put the clothes and the coins inside of it. (R.Vol. IV,
103.) However, Johnston’s testimony did not tie Balano
to the suitcase in any way. He testified only that Rosen
took it off the shelf for them without any indication as
to the presence of Balano. (R.Vol. IV, 103.) In fact,
Johnston himself in answer to a question as to “[w]hat
precise.y did Mr. Balano do to assist you when you came
in there with the coins?” could only respond that Balano
“[fJurnished Mr. Carullo with a razor to shave with” and
also “allowed us to use the telephone.” (R.Vol. V, 223.)
Use of the telephone was not mentioned in the indict-
ment. (R.Vol. I, 2.) Finally, Balano, at least according
to Johnston, permitted him to pick out clothes to change
into. (R.Vol. V, 223.)
Moreover, Johnston did not testify that Balano was
in any way aware that the coins had been taken across
9
a state line. He testified, as previously noted, that Rosen
met them when they first came into the store. Rosen
asked them how they had gotten to the store and Johnston
responded that they had “stashed the car we used in
the robbery on the Missouri side of the river, and we
took a cab back over here.” (R.Vol. IV, 105.) There was
no testimony showing that Balano was present during
such conversation or otherwise aware of it.
Upon leaving Sol’s Loan Office, Johnston and Carullo
were driven by a friend of a friend back across the state
line to a car lot owned by William Reese. (R.Vol. V,
311.) They sold the coins to Reese on that day for $4,800
(R.Vol. V, 311) and split up the money. (R.Vol. V, 311.)
To buttress its case in the second trial, the prosecution
was permitted over the objections of the defendant, to
read Carullo’s grand jury testimony into evidence. Per-
mitting the prosecution to do so was particularly crucial
under the/circumstances of this case. As the Court of
Appeals noted, “Based on his lengthy legal experience,
the district judge expressed ‘grave doubts’ that Johnston’s
testimony alone would in fact convince a jury.” (Slip Op.
at 20 n. 14.) The prejudice to the defendant seems more
apparent when the imprecision of Carullo’s testimony is
considered. He repeatedly referred to the acts or involve-
ment of each. That imprecision was encouraged by the
prosecution’s use of the same term:
Q. While at Sol’s did they aid or help vou in any
way to change your appearance:
Yes.
Tell us what they did there.
Bought a razor so we could shave, and some
clothes.
You shaved there?
> © pP
©
10
A. Yes.
Q. Did they have a bathroom there?
A. Yes.
@. And you got new clothes, both of you?
A. Yes.
Q. Did they give you anything to carry the coins in?
A. A suitcase. It was blue.
(R.Vol. V, 307-308) (emphasis added).
The prosecution, in fact, made no attempt to differ-
entiate between the acts of Balano and Rosen or to pin
down whether Balano was present or participated in any
of the transactions in question.
At the first trial, Carullo refused to testify even though
he was granted immunity as to the testimony and was
subsequently sentenced to six months additional imprison-
ment for his refusal. (R.Vol. I, 106.) The trial court per-
mitted the prosecution in the second trial to read Carullo’s
grand jury testimony, finding that Carullo had refused
to testify because of a threat on his life made by Balano.
(R.Vol. I, 106.) Prior to the second trial, Carullo filed
an affidavit stating that he would again refuse to testify
for fear of his own family’s safety. (R.Vol. I, 106.) Ata
pretrial hearing on the matter, a government agent testi-
fied that Carullo had affirmed the accuracy of his grand
jury testimony. (R.Vol. I, 106.) He forgot to note that
in the grand jury testimony Carullo was specifically asked
about threats and he identified two. One was an anon-
ymous phone call to his employer when he was not
present. The other was a threat by “someone” at Sol’s
Loan but under oath Carullo specifically denied knowing
who made the threat. (R.Vol. IT Supp., 45-47.) The agent
also related that Carullo had said he had been threatened
at his place of employment by Balano. (R.Vol. I, 107.)
11
However, just befoi » trial, counsel for the defendant Balano
provided to the court an unsolicited letter that he had
received from Carullo. (R.Vol. IV, 27, Exhibit 1) (text
appears in Court of Appeals Slip Op. All, n. 12.) In
the letter, Carullo stated that he did not recall seeing
or talking to Balano. (Id.) Carullo also stated that he
was “under duress and pressure” from the federal govern-
ment and might have made the statement attributed to
him by the government agent “‘because of mental anguish
and... pressure.” The letter was consistent with Carullo’s
previous grand jury testimony. (R.Vol. IV, 24.) Nonethe-
less, the trial court refused to even hold an additional
hearing on the matter, finding that it was a matter of
“credibility.” (R.Vol. IV, 25, 26.)
REASONS FOR GRANTING THE WRIT
I. The Court of Appeals Decision Directly Conflicts
With Principles Enunciated by This Court in a
Long Line of Cases As to Waiver of a Constitu-
tional Right.
This case presents a question that, insofar as Balano’s
counsel can ascertain, has never been decided directly or
indirectly by this Court. The question is the degree and
type of proof that must be offered by the prosecution
to prove waiver of the right to confront witnesses under
the Sixth Amendment when the prosecution claims that
the defendant coerced the witness into refusing to testify.
Both the trial court and the Court of Appeals con-
cluded that, absent waiver, the use of prior grand jury
testimony of an unavailable witness should be barred by
the Confrontation Clause as evidence of a defendant’s guilt.
(A4.) As the court noted, its decision creates a conflict
with the Fourth Circuit, which has permitted use of grand
jury testimony after the death of the witness. United
12
States v. West, 574 F.2d 1131 (4th Cir. 1978). See also
United States v. Garner, 574 F.2d 1141 (4th Cir. 1978),
cert. den., 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978).
Buf, as the Court of Appeals in this case noted, such a
ruling “improperly reduces the Confrontation Clause to
a mere consideration of evidentiary value.” (A5.) More-
over, as the Court of Appeals noted, the Fourth Circuit’s
approach is inconsistent with a long line of this Court’s
decisions. See Mattox v. United States, 156 U.S. 237, 15
S.Ct. 357, 39 L.Ed. 409 (1895); Douglas v. Alabama, 380
U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer
v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965);
Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d
295 (1968); California v. Green, 399 U.S. 149, 90 S.Ct.
1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S.
74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Davis v. Alaska,
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). That
point was forcefully made by Mr. Justice Stewart in
dissenting from the denial of the petition for writ of
certiorari in United States v. Garner. In that dissent, Mr.
Justice Stewart specifically referred to a conflict among
the circuits and the necessity of a ruling by this Court
to define the admissibility of hearsay evidence that does
not fall within one of the traditional exceptions. 99 S.Ct.
at 335. In any event, the conclusion of the Court of
Appeals that Balano’s constitutional right to confrontation
of the witnesses against him was violated by use of the
grand jury testimony, absent waiver, was unquestionably
correct. However, the same is not true of its analysis
of the waiver issue.
The defendant Balano has no quarrel with the Court
of Appeals’ determination that constitutional rights, in-
cluding that to confront witnesses, may be waived. Lego
v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618
(1972); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16
13
L.Ed.2d 314 (1966). However, the defendant Balano does
strenuously object to the test applied by the Court to
determine whether a waiver existed and its approach to
the trial court’s ruling.
In Brookhart v. Janis, this Court enunciated the fol-
lowing general principles for determining whether defen-
dant in a criminal trial waived a constitutional right:
The question of a waiver of a federally guaranteed
constitutional right is, of course, a federal question
controlled by federal law. There is a presumption
against the waiver of constitutional rights, see, e.g.,
Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct.
457, 86 L.Ed. 680, and for a waiver to be effective
it must be clearly established that there was “an
intentional relinquishment or abandonment of a known
right or privilege.” Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 82 L.Ed. 1461.
384 U.S. at 4. This Court went on to note that “[i]n
deciding the federal question of waiver raised here we
must, of course, look to the facts which allegedly support
the waiver” because ‘“‘[w]hen constitutional rights turn
on the resolution of a factual dispute we are duty bound
to make an independent examination of the evidence in
the record.” 384 U.S. at 4, n. 4. The issue in this case
hinged upon a factual dispute. Yet the Court of Appeals
entirely failed to independently examine the evidence
of record, instead electing to merely defer to the trial
court’s decision. (A9-12.)
Of even more importance is the fact that the evidence
relied upon by both the trial court and the Court of
Appeals is entirely insufficient to prove a waiver under
the standard adopted by this Court. In Lego v. Twomey,
supra, this Court dealt with the burden of proof applicable
to a determination of the voluntariness of a confession.
14
This Court determined that the Constitution requires that
“the prosecution must prove at least by a preponderance
of the evidence that the defendant waived his right to
remain silent.” 404 U.S. at 489. The Court of Appeals
adopted a similar approach, stating that the trial court
must “find by a preponderance of the evidence that the
defendant’s coercion made the witness unavailable.” (A10.)
The Court of Appeals cited no authority for that state-
ment. It then went on to analyze the matter as if the
issue were one of mere evidence as in a civil matter in
which the plaintiff must prove his case by the “prepon-
derance of evidence.” Although this Court used the same
term in Lego v. Twomey, the context in which it was
used in that and other cases makes clear that the evi-
dentiary standard is entirely different from that in a
civil case.
As was pointed out previously, there is a presumption
that a defendant did not waive his constitutional rights.
That principle is supported by a number of cases. This
Court, in fact, has said that “we indulge every reasonable
presumption against the waiver of fundamental rights.”
Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457,
86 L.Ed. 680 (1942). See also Illinois v. Allen, 397 U.S.
337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. den., 398
U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). Thus, the
evidence of waiver must be sufficient to overcome that
presumption. Moreover, the entire burden of proving a
waiver of a constitutional right rests upon the prosecution.
See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972).
The evidence offered by the prosecution must be
more convincing than that which might suffice in a civil
trial. This Court stated in Smith v. United States, 337
U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264 (1949), that a
15
waiver of constitutional rights “is not lightly to be in-
ferred” and may not rest upon “vague and uncertain
evidence.” 337 U.S. at 150. ‘For a waiver of constitu-
tional rights in any context must, at the very least, be
clear.” Fuentes v. Shevin, 407 U.S. 67, 95, 92 S.Ct. 1983,
32 L.Ed.2d 556 (1972). Thus, a defendant in a criminal
trial is “entitled to a reliable and clear-cut determination”
of waiver. Lego v. Twomey, supra, 404 U.S. at 489.
The evidence in this case hardly meets that standard.
As the Court of Appeals noted, Carullo specifically refused
to discuss his reasons for refusing to testify. (A10.) The
finding of waiver was entirely based on testimony of an
FBI agent who claimed that Carullo had said that he
would not testify because of threats on his life. More-
over, Carullo’s supposed statements to the FBI agent were
hardly conclusive as to Balano. One concerned an anon-
ymous phone call threatening anyone who testified. The
other “threat” was an alleged statement by Balano to the
effect that someone might be killed if any statements
were made. Although the lower court’s opinion refers to
“threats” made by Balano, there was absolutely no evi-
dence presented to connect the anonymous phone call to
Balano. Thus, the question of waiver comes down to a
single statement specifically denied by Balano and “‘proved”
by the prosecution only through pure hearsay from the
mouth of an FBI agent who had every reason and oppor-
tunity to use overt or covert pressure against the witness.
Viewed in that light, a reasonable conclusion that the
record supports a finding of waiver by the clear prepon-
derance of evidence is simply impossible. The Court of
Appeals, as did the trial court, obviously gave considerable
weight to Carullo’s statement that his prior grand jury
testimony was truthful. The Court, however, overlooked
a crucial aspect of that testimony. Carullo was specifically
16
asked about threats and he identified two. One was an
anonymous phone call to his employer when he was not
present. The other was a threat by “someone” at Sol’s
Loan but under oath Carullo specifically denied knowing
who made the threat. Rather, Carullo’s grand jury testi-
mony reflecis that “they,” meaning someone at Sol’s Loan,
talked about a sum of $5,000 to have Johnston taken care
of. Carullo also indicated that someone at the bar where
he worked received an anonymous phone call to the effect
that Carullo’s family would be hurt if anyone said any-
thing. There was not any testimony as to who received
the call or that the caller was identified as being a man
or a woman. In addition, Carullo’s grand jury testimony
of October 24, 1975 clearly failed to indicate so much as
a suggestion of a veiled threat by Balano. Yet, that threat
served as the basis on which the trial court and the
Court of Appeals found Balano had waived his right of
confrontation. (R.Vol. II Supp., 46-47.) In addition, the
threat that now serves as the basis for the waiver was
revealed by Carullo belatedly and at the time he was
incarcerated and then only in an unsworn statement to
FBI agent Reuschlein. Yet, in further response to Reusch-
lein’s inquiry, Carullo specifically indicated that his grand
jury testimony was true and correct to the best of his
knowledge.
Moreover, Carullo later specifically repudiated any
such statement to the FBI agent in an unsolicited letter
to Balano’s attorney. In that letter, Carullo specifically
denied even seeing Balano at the bar in question. Yet,
the trial court determined that the letter did not mean
what it said. The court did so by determining the cred-
ibility of Carullo, but not on the basis of his sworn
testimony or an unsolicited letter that was entirely con-
sistent with his sworn testimony. The court did so only
on the basis of hearsay testimony of an FBI agent. The
—
17
defendant submits that it is entirely inappropriate under
the required constitutional standard to determine the cred-
ibility of such a crucial witness on the basis not of his
sworn testimony but on the testimony of an FBI agent.
Thus, the defendant fails to see how it can possibly
be said that the preponderance of evidence supports a
finding of waiver. A waiver can be found only by dis-
regarding sworn testimony and an unsolicited letter by
the witness consistent with that testimony and crediting
rank hearsay from the muuch, not of the witness, but of
an FBI agent. The defendant submits that under this
Court’s guidelines Carullo’s sworn grand jury testimony,
which makes no reference to the threat upon which a
finding of waiver is based and which is corroborated by
his unsolicited letter to Balano’s attorney, clearly out-
weighs his unsworn statement to the FBI agent, partic-
ularly when Carullo has said at all times that his grand
jury testimony was truthful. Certiorari should be granted
to review a decision with such important ramifications
for constitutional principles and the crirninal justice sys-
tem.
II. The Defendant Was Improperly Convicted With-
out Any Evidence Whatsoever That He Knew That
the Underlying Crime Required Under 18 U.S.C.
§3 Had Been Committed and Upon Entirely In-
adequate Proof and, in Addition, Was Properly
Chargeable Only Under 18 U.S.C. §2.
Certiorari should also be granted in this case because
it presents important questions in the administration of
federal criminal justice. Specifically, it presents issues
as to the distinctions between 18 U.S.C. §2 and 18 U.S.C.
§3, the degree of scienter required under 18 U.S.C. §3
and the type of acts required for conviction under 18
.
18
U.S.C. §3. None of the issues has been directly dealt
e .
with by this Court.
Under 18 U.S.C. §2, one who aids and abets a federal
offense is punishable as a principal. 18 U.S.C. §3 defines
an accessory after the fact as one who assists an offender
while “knowing that an offense against the United States
has been committed.” The offense under that statute
is distinct from that committed by an aider and abettor
and a different punishment is prescribed. See Bollenbach
v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed, 350
(1946).
Balano was Charged as an accessory after the fact
under 18 U.S.C. §3. The charge was entirely incorrect
because the robbers were still in the escape phase of
their crime and had thus not yet completed it. In the
context of this crime, an accessory after the fact is gen-
erally one who acts as a fence by helping to dispose of
the stolen property after the interstate transportation was
concluded. Bollenbach v. United States, supra, 326 U.S.
at 611. The conduct for which Balano was charged and
convicted was not even remotely similar.
Of perhaps more importance, however, are the ques-
tions concerning the scienter necessary for conviction and
the definition of criminal conduct. The statute, 18 U.S.C.
§3, clearly states that an accessory after the fact is one
who assists an offender while “knowing that an offense
against the United States has been committed.” The Court
of Appeals evaded that clear statutory language by appli-
cation of the principle that “[w]e do not require the
government to prove the defendant’s knowledge of juris-
dictional elements,” citing United States v. Feola, 420 U.S.
671, 685, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975).
But Feola is clearly inapplicable. The defendant in
Feola was convicted of conspiracy to assault a federal
19
officer. He contended without any statutory support
whatsoever that a defendant could not be guilty of con-
spiracy unless he knew that his conduct violated federal
law. The general conspiracy statute, 18 U.S.C. §371, offers
no support for that contention. This Court rejected it
as inconsistent with the purposes of the law of conspiracy.
In contrast, 18 U.S.C. §3 specifically states that an
accessory after the fact is one who “knows” that an offense
against the United States has been committed. Such clear
and specific language should be given effect. ‘In the
absence of pervasive reasons to the contrary, we attribute
to the words of a statute their ordinary meaning.” Banks
v. Chicago Grain Trimmers Association, 390 U.S. 459, 465,
88 S.Ct. 1140, 20 L.Ed.2d 30 (1968). “The case must be
a strong one indeed, which would justify a Court in
departing from the plain meaning of words, especially in
a penal act, in search of an intention which the words
themselves do not suggest.” Bouie v. Columbia, 378 U.S.
347, 362-63, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (quoting
from United States v. Wiltberger, 5 Wheat. 76, 96, 5 L.Ed.
37 (1820) (opinion by Marshall, C.J.).)
The uncontroverted evidence in the records shows
that Balano did not know that an offense against the
United States had been committed. That is, he did not
know that the robbers had transported stolen coins valued
at $5,000 or more across a state line in violation of 18
U.S.C. §2314.
Neither the trial testimony of Johnston nor the grand
jury testimony of Carullo established, in any fashion, that
Balano had any knowledge whatsoever of the value of
the coins. Carullo specifically stated that the ever present
“they” looked at the coins but Carullo could not recall
whether “they” placed a price on them. Johnston’s testi-
mony contained no reference to anything said or done
20
that would indicate Balano had any knowledge of the
value of the coins.
Moreover, neither witness established that Balano had
any knowledge as to whether the coins had been taken
across a state line. Carullo’s testimony did not refer to
anything said or done that wuld indicate to Balano what
had happened. Johnston testified that he had stated, in
answer to a question by Saul Rosen, that ‘“‘we stashed
the car we used in the robbery on the Missouri side of
the river, and we took a cab back over here.” The
prosecution, however, made no attempt to place Balano
within hearing distance of that statement or to prove
in any other manner that he had knowledge of it or of
the fact that the coins had been taken into Missouri and
back into Kansas. Such evidence is simply not sufficient.
Moreover, the Tenth Circuit’s curt dismissal of this
claim on the basis that the defendant’s knowledge is a
mere jurisdictional element does not address the actual
issue as set forth in the very case cited by the court
in support of its approach, United States v. Feola. In
that opinion, Mr. Justice Blackmun, speaking for the
Court, stated that “[t]he significance of labeling a stat-
utory requirement as ‘jurisdictional’ is not that the re-
quirement is viewed as outside the scope of the evil
Congress intended to forestall, but merely that the exis-
tence of the fact that confers federal jurisdiction need
not be one in the mind of the actor at the time he per-
petrates that act made criminal by the federal statute.”
420 U.S. at 676, n. 9. However, he then went on to
define the actual issue when the question arises: “The
question, then, is not whether the requirement is juris-
dictional, but whether it is jurisdictional only.” Id. (em-
phasis added). As made clear by the balance of the
opinion in that case, the question of whether a statutory
element is ‘jurisdictional only” hinges upon the legislative
21
intent. And, as was pointed out previously, the legislative
intent, when expressed in clear and plain language, is
to be given effect according to that language.
The language in 18 U.S.C. §3 is based upon Skelly
v. United States, 76 F.2d 483 (10th Cir, 1935), cert. den.,
295 U.S. 757 (1935), in which the court specifically noted
that the concept of accessory after the fact requires knowl-
edge of the substantive offense. See Revisor’s Note, 18
U.S.C.A. §3. In this case, the uncontroverted evidence
in the record shows that Balano had no knowledge that
the substantive offense, interstate transportation of stolen
goods valued at more than $5,000, had been committed.
The government therefore failed to prove a crucial element
of the crime.
Beyond that, the evidence was simply insufficient to
support the conviction even if Balano had known of the
underlying offense. An accessory after the fact is one
who aids an offender ‘‘in order to hinder or prevent his
apprehension, trial or punishment.” 18 U.S.C. §3. The
Court of Appeals specifically noted that the evidence
against Balano ‘‘was circumstantial” and that Balano’s ac-
tions were “certainly not overwhelming in scope.” (A14.)
In fact, the prosecution was unable to show that any
conduct by Balano materially hindered the apprehension
of Johnston and Carullo, the robbers. The sole evidence
linking Balano to the underlying offense was the act of
providing a razor and a place to shave, but to a man
that the victim described as clean shaven. Clothing was
supplied by Rosen rather than Balano, according to the
testimony of both robbers. Rosen also provided a suit-
case to the robbers.
Balano may not be convicted for the acts of his part-
ner. ‘[G]Juilt by association remains a thoroughly dis-
credited doctrine.” Uphaus v. Wyman, 360 U.S. 72, 79,
22
79 S.Ct. 1040, 3 L.Ed.2d 1090 (1959). Moreover, the un-
contradicted evidence in the record shows that nothing
done by Balano, or for that matter Rosen, in any way
affected or hindered law enforcement efforts or that Balano
had any reason to expect that they would. Section 18
U.S.C. §3 is primarily a codification of long established
principles of common law. Under general principles of
law, “[mlJere acts of charity which relieve or comfort a
felon, but do not hinder his apprehension and conviction
or aid his escape, will not vender one an accessory after
the fact.” 22 C.J.S. Criminal Law 897, 276. That principle
should also be applicable in this instance. Therefore,
because of the total inadequacy of the evidence, an inade-
quacy acknowledged by the Court of Appeals, Balano
should not have been convicted and this Court, in exer-
cise of its supervisory capacity over the federal criminal
justice system, should grant certiorari to rectify the wrong
III. The Trial Court Erred by No. Granting Defen-
dant’s Motion for Judgment of Acquittal at the
Close of the First Trial.
The record reflects that at the close of the first trial
of this case, the defendant Balano properly filed a motion
for acquittal that raised the question of the sufficiency
of the prosecution’s evidence. That motion was denied,
improperly so, by the trial court. Thereafter, after the
second trial, the defendant Balano renewed that motion,
which was again overruled by the trial court, The defen-
dant contends that both actions of the trial court were
improper and that his conviction should have been re-
versed on the ground that the government failed as a
matter of law to prove its case beyond a reasonable doubt
at the first trial.
The trial court properly recognized that its denial
of the defendant’s motion for a judgment of acquittal
23
at the close of the first trial was not at that time appeal-
able. See generally United States v. Kaufman, 311 F.2d
695 (2nd Cir. 1963), However, the trial court then pro-
ceeded to rule that because the defendant had not ap-
pealed its order, he could not raise it after the second
trial. Such reasoning was fallacious on its face and it
was properly criticized by the Court of Appeals. In its
opinion, the Court of Appeals noted that a denial of a
motion for judgment of acquittal at the end of the first
trial was clearly appealable after the second trial because
of its double jeopardy ramifications, citing Abney v. United
States, 431 U.S. 651, 656-62, 97 S.Ct. 1401, 51 L.Ed.2d
711 (1977).
Any other conclusion would obviously raise serious
double jeopardy implications. In United States v. Martin
Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d
642 (1977), this court specifically held that a judgment of
acquittal under Fed. R. Crim. P. 29(c), after discharge of
a jury that has been unable to agree on a verdict, gave rise
to double jeopardy. Similarly, in Burks v. United States,
437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene
v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978),
this Court held that the double jeopardy clause precludes
a second trial when an appellate court has determined that
the evidence introduced at the first trial was insufficient
to sustain the verdict. Obviously, the prosecution should
not be able to subject a defendant to a second trial when
it has wholly failed to prove its case in the first.
As was pointed out previously, the prosecution, to
prove its case, was required to introduce convincing evi-
dence that the defendant knew that coins valued at over
$5,000.00 had been transported in interstate commerce.
' As was also pointed out previously, the grand jury testi-
mony of Carullo was totally inconclusive on this point.
24
At the first trial, the prosecution used Johnston in an
attempt to prove that element, as it did in the second trial.
Johnston’s testimony in the first trial was even weaker
than it was the second time. In fact, absolutely nothing
in the record of Johnston’s testimony of the first trial pro-
vides any basis for even a weak inference that the defen-
dant knew of any interstate transportation of the coins.
The transcript of the first trial reflects Johnston’s
testimony that upon entering the store Carullo was taken
into the back office by Balano, Johnston remaining in the
front of the store. Rosen then asked Johnston if they had
driven the getaway car to the store. Johnston’s reply
was:
A. No. We ditched it in Missouri and took a cab
over here.
Q. Now, could you see what was going on in the back
office from where you were?
A. Yes, I could. There was a glass window in the
part of the office towards the front of the store.
Q. Did you see what was going on there in the office?
A. The brief case that we had taken from the Mission
Coin Shop had been placed on the desk in the of-
fice, and Mr. Balano and Mr. Carullo were looking
at the coins.
(R.Vol. ITI, 29-30.)
Thus, the testimony at the first trial totally failed to
place Balano in the presence of Rosen and Johnston when
any statements were made that would impart notice of
knowledge of the interstate transportation of the coins.
The Court of Appeals noted that such was the case, con-
ceding that the “new evidence” in the form of Carullo’s
grand jury testimony ‘“‘did considerably strengthen the
government’s position” on the issue. (A17.) However, the
25
Court of Appeals refused to reverse the conviction, stating
that the “government was not required to prove the
surplusage of the indictment.” Id. As is pointed out in
section II of this brief, allegations as to the defendant’s
knowledge of the value of the coins and their interstate
transportation are not surplusage in light of the specific
statutory language and this Court’s holdings. The conclu-
sion of the Court of Appeals is therefore based upon an
erroneous premise. The motion for judgment of acquittal
should have been granted after the first trial and is now
ground for dismissal of the indictment.
IV. The Indictment Did Not Include Any Reference to
the Time of the Alleged Offense and Therefore
Did Not Allege a Crime.
It is an obvious truism that an indictment must charge
an offense within the statute of limitations. There is little
question that time is to be treated in most instances as a
matter of form rather than substance, assuming that the
alleged offense was clearly committed within the ap-
plicable limitation period. But, as this Court has long
held, if the allegation does not clearly show that the of-
fense occurred within the applicable limitation period,
time becomes a substantive element of the offense. See
Ledbetter v. United States, 170 U.S. 606, 612, 18 S.Ct. 774,
42 L.Ed. 1162 (1898). 18 U.S.C. §3 requires that a de-
fendant be an accessory after the fact to an “offense
against the United States.” An “offense against the United
States” exists only if it is committed within the applicable
limitation period, in this instance 18 U.S.C. $3282, and
when no time is assigned to the alleged underlying offense
the allegation fails to state a public offense. Thus, the
issue, in its simplest terms, is whether an indictment may
allege a violation of 18 U.S.C. §3 without alleging an of-
fense against the United States. The petitioner submits
26
that the obvious answer is in the negative and that the
indictment in this case should therefore have been dis-
missed as wholly inadequate.
CONCLUSION
The petitioner believes that after reviewing the fore-
going discussion, the members of this Honorable Court
will conclude that this is a proper case to determine an
issue of constitutional law that has never been directly
addressed by this Court. The case also poses questions
that go to the very marrow of the criminal justice system.
Without doubt, this case raises matters that are not mere
technicalities. The petitioner therefore respectfully re-
quests that this Court grant certiorari.
Very respectfully submitted,
JoHun C. HUMPAGE
HuMPAGE, BERGER AND HorrMAN
314 West Seventh Street
Topeka, Kansas 66603
Phone: (913) 235-5351
Attorneys for Petitioner
Al
APPENDIX
APPENDIX A
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 78-1314
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
PHILLIP R. BALANO,
Defendant-Appellant.
(Filed December 18, 1979)
Appeal From the United States District Court
for the District of Kansas
(D.C. Case No. 76-39-CR2)
John C. Humpage, Topeka, Kansas, for Defendant-Ap-
pellant.
Edward D. Holmes, Department of Justice (with James
P. Buchele, United States Attorney), Kansas City, Mis-
souri, for Plaintiff-Appellee.
Before HOLLOWAY, McKAY and LOGAN, Circuit J udges.
McKAY, Circuit Judge.
Balano has twice been tried, the first trial resulting in
a hung jury. Following his conviction on one count of
A2
violating 18 U.S.C. § 3 (1976) as an accessory after the
fact to interstate transportation of stolen goods, Balano
raises several issues on appeal. His primary contention
is that the district court erred in admitting into evidence
the grand jury testimony of a convicted participant in the
crime, after the witness had refused to testify at trial
because of alleged coercion by Balano. Balano also chal-
lenges the sufficiency of the evidence to support the con-
viction, the trial court’s refusal to permit the introduction
for impeachment purposes of another participant’s answer
to an interrogatory, the court’s refusal to dismiss the in-
dictment at the end of the first trial, and the sufficiency
of the indictment. We reject each of Balano’s arguments
and affirm his conviction.
I.
Balano was originally charged in two of the three
counts of an indictment. Count I, which did not name
Balano, charged that one Samuel Bernstein aided and
abetted Dominick J. Carullo and James E. Johnston in the
interstate transportation of stolen coins. The coins were
stolen in Kansas, removed to Missouri, and then returned
to Kansas. Carullo and Johnston were separately indicted;
each pleaded guilty and was sentenced to five years in
prison. The fence to whom most of the stolen coins were
sold, William Reese, was also separately indicted, and he
too pleaded guilty. Following a hung jury in the first
trial, Bernstein’s case was severed from Balano’s. In
Count III, Balano and Saul Rosen, his partner in Sol’s
Loan Office in Kansas City, Kansas, were charged with
transporting the stolen goods in interstate commerce. Be-
fore submitting the case to the jury, the trial court re-
moved Count III from the indictment because of insuf-
ficient evidence.
A3
In Count II, the only count remaining directly in issue
on appeal, Balano and Rosen were charged as accessories
after the fact for knowingly aiding Carullo and Johnston
after the robbery.’ The trial court denied Balano and
Rosen’s motion for acquittal at the close of the evidence
and, after the jury could not reach a verdict, denied a
renewed acquittal motion.* At this first trial the govern-
ment relied almost exclusively on the testimony of John-
ston, a participant in the robbery, whose testimony linked
Balano marginally, -but clearly, with the crimes. The
other participant, Carullo, refused to testify even after a
grant of immunity. He was cited for contempt and sen-
tenced to an additional six months’ imprisonment. Be-
fore the second trial Carullo indicated that he would again
1. In full, Count II reads:
That on or about the 13th day of April, 1974, in Kansas
City, in the State and District of Kansas, PHILLIP R.
BALANO and SAUL ROSEN, defendants herein, knowing
that Dominick J. Carullo and James E. Johnston, a/k/a
Sonny, not named as defendants herein, had transported
stolen gold coins of a value over $5,000 from Mission, Kansas,
to Kansas City, Missouri, and to Kansas City, Kansas, in
violation of Section 2314, Title 18, United States Code, did
knowingly relieve, receive, comfort and assist the said Domi-
nick J. Carullo and James E. Johnston, a/k/a Sonny, in
order to hinder or prevent their apprehension for trial and
punishment; that is to say, the said PHILLIP R. BALANO
and SAUL ROSEN, well knowing that Dominick J. Carullo
and James E. Johnston, a/k/a Sonny, had transported in inter-
state commerce stolen goods valued at $5,000 or more as
aforementioned, did provide Dominick J. Carullo and James
E. Johnston, a/k/a Sonny, new clothing to replace the cloth-
ing used in the above-mentioned crime, did provide Dominick
J. Carullo shaving equipment and lavatory facilities in order
for the said Carullo to shave off his mustache and beard,
and did provide Dominick J. Carullo and James E. Johnston,
a/k/a Sonny, a suitcase in which to hide the stolen gold
coins, all for the purpose of aiding and assisting the said
Dominick J. Carullo and James E. Johnston, a/k/a Sonny,
to escape apprehension for trial and punishment.
All in violation of Title 18, United States Code, Sec.ion 3.
Record, vol. 1, at 1-2.
2. Because Rosen died before the commencement of the
second trial, the indictment against him was dismissed.
A4
refuse to testify. After an evidentiary hearing, the court
permitted the introduction of Carullo’s grand jury testi-
mony, which tied Balano more closely to the criminal
scheme. Balano was convicted, his acquittal motions were
denied, and this appeal resulted.
II.
On both statutory and constitutional grounds, Balano
challenges the admission of Carullo’s grand jury testi-
mony. Balano first questions the trial court’s finding that
the necessary requirements were present to justify ad-
mission of the hearsay evidence under Fed. R. Evid. 804(b)
(5). Even if statutory justification for admission did exist,
however, Balano charges that the admission of the grand
jury evidence in this case denied him his constitutional
right “to be confronted with the witnesses against him.”
U.S. Const. amend. VI.
The trial court agreed that, absent waiver, the prior
grand jury testimony of an unavailable witness should be
inadmissible as evidence of a defendant’s guilt. However,
the court held that Balano had effectively waived his right
to confront Carullo by threatening his life. Although we
will not lightly accept findings of waiver of the constitu-
tional right of confrontation, we hold that the trial court’s
careful consideration of the evidence of coercion justified
its finding in this case. Because we find a waiver of con-
frontation rights, we need not consider whether the testi-
mony met the standards for admission under Rule 804 (b)
(5). A valid waiver of the constitutional right is a fortiori
a valid waiver of an objection under the rules of evidence.
A}
We must reach the waiver question because we find
that, absent waiver, Balano’s Confrontation Clause rights
3. Part II.A. reflects the analysis of J udge McKay only.
A5
were violated. In its Memorandum and Order, the trial
court correctly stated that, at the time, “[e]ven with. . .
indicia of reliability, it appears no Court has been willing,
without more, to sanction use of an unavailable witness’
grand jury testimony as substantive evidence at trial to
reflect upon a defendant’s guilt.” Record, vol. 1, at 108.
See United States v. Carlson, 547 F.2d 1346, 1357 (8th Cir.
1976), cert. denied, 431 U.S. 914 (1977); United States v.
Fiore, 443 F.2d 112, 115 (2d Cir. 1971). Because of United
States v. West, 574 F.2d 1131 (4th Cir. 1978), the district
court’s statement is no longer correct. In West, the Fourth
Circuit permitted introduction of grand jury testimony
(after the death of the witness) because of strong guar-
antees of the testimony’s reliability. See also United
States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439
U.S. 936 (1978). We believe, however, that West im-
properly reduces the Confrontation Clause to a mere con-
sideration of evidentiary value.
The West court recognized that the Confrontation
Clause and the historical hearsay rules are not congruent.
The Supreme Court has “more than once found a violation
of confrontation values even though the statements in issue
were admitted under an arguably recognized hearsay ex-
ception.” California v. Green, 399 U.S. 149, 155-56 (19/0),
citing Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas,
380 U.S. 400 (1965). See also United States v. Roberts, 583
F.2d 1173, 1176 (10th Cir. 1978), cert. denied, 439 U.S. 1080
(1979). Although “the Sixth Amendment’s Confrontation
Clause and the evidentiary hearsay rule stem from the
same roots ... [the Supreme] Court has never equated the
two.” Dutton v. Evans, 400 U.S. 74, 86 (1970). Despite its
recognition of these differences, however, the Fourth Cir-
cuit found that “the same circumstances suffice to meet the
A6
requirements of [Rule] 804(b)(5) and of the Confronta-
tion Clause.” 574 F.2d at 1138. We disagree.‘
The Confrontation Clause is not concerned only with
the inherent veracity of hearsay statements. “[W]e should
not be lured by the possible reliability of out-of-court state-
ments, important as that is in the consideration of the prob-
lem as a rule of evidence, away from the ultimate constitu-
tional prescription [of the Confrontation Clause], which is
the regulation of trial procedure.” United States v. West,
574 F.2d at 1139 (Widener, J., dissenting). The Clause was
aimed at “the particular vice .. . of trying defendants on
‘evidence’ which consisted solely of ex parte affidavits or
depositions secured by the examining magistrates.” Cali-
fornia v. Green, 399 U.S. 149, 156 (1970). The Clause is
directed not primarily at content but at “compelling [the
witness] to stand face to face with the jury in order that
they may look at him, and judge by his demeanor upon
the stand and the manner in which he gives his testimony
whether he is worthy of belief.” Mattox v. United States,
156 U.S. 237, 242-43 (1895). Under these standards,
Carullo’s grand jury testimony fails to satisfy the require-
ments of the Confrontation Clause. It is the equivalent
of an ex parte deposition, it was not redeemed by a court
appearance of Carullo, and it was secured through a pro-
cedure that has become the arm of the “examining magis-
trate.””®
4. We recognize that the Supreme Court has appeared to
give overriding significance to “indicia of reliability.” See Man-
cusi v. Stubbs, 408 U.S. 204 (1972). In Mancusi, however, the
hearsay statements came from testimony at an earlier trial, and
the determinative indicium of reliability was an “adequate op-
portunity to cross-examine” at that earlier trial. Id. at 216.
5. In characterizing grand jury testimony for Confrontation
Clause purposes, we should recognize that grand juries have
largely lost their function as protectors of individual rights and
have become agents of the prosecution. See M. Frankel & G.
Naftalis, The Grand Jury: An Institution on Trial 99-102 (1977).
If we were to ignore this reality in our analysis, we would be
using a fictional protection of individual rights as an excuse to
remove the actual protections of the Confrontation Clause.
A7
We do not mean to elevate cross-examination, under
all circumstances, to the level of a constitutional require-
ment. Read narrowly, the Confrontation Clause would al-
together preclude the use of hearsay evidence in criminal
trials unless the hearsay declarant was available for cross-
examination. No major American court has gone so far,
see Dutton v. Evans, 400 U.S. at 82, and we certainly do not.
We can also agree with the Fourth Circuit that “t]he
Supreme Court has never intimated .. . that cross-exam-
ination is the only means by which prior recorded testimony
may be qualified for admission under the Confrontation
Clause.” United States v. West, 574 F.2d at 1137. See
United States v. Roberts, 583 F.2d 1173, 1176-77 (10th Cir.
1978), cert. denied, 439 U.S. 1080 (1979) ( co-conspirator ex-
ception to hearsay rule). Nevertheless, the Supreme Court
has placed great emphasis on cross-examination—whether
at the instant trial or at another trial or hearing—as a
protector of confrontation values. “[The Court’s] cases
construing the [confrontation] clause hold that a primary
interest secured by it is the right of cross-examination.”
Davis v. Alaska, 415 U.S. 308, 315 (1974), quoting Douglas
v. Alabama, 380 U.S. 415, 418 (1965). See also California v.
Green, 399 U.S. 149, 158 (1970); Bruton v. United States,
391 U.S. 123, 126 (1968); Barber v. Page, 390 U.S. 719,
725 (1968); Brookhart v. Janis, 384 U.S. 1, 4 (1966) ;
Pointer v. Texas, 380 U.S. 400, 404 (1965). When the
hearsay evidence is grand jury testimony—that is, when
the prosecution itself has secured the hearsay testimony—
we are unwilling to dispense with cross-examination as a
required element of confrontation.®
6. Under no circumstances, including coercive acts by a
defendant, should cross-examination of an available witness not
be constitutionally mandated. See United States v. Mathis, 559
F.2d 294 (5th Cir. 1977). In Mathis, a threatened witness did
not testify although she had “explicitly stated that if she was
ordered to testify, she would not refuse to do so.” Id. at 298. The
(Continued on following page)
A8
Cross-examination in the instant case would have been
particularly important because much of the damaging grand
jury testimony—questions as well as answers—referred to
an indefinite “they” performing the illegal acts. ‘“They”
apparently were Rosen and Balano, Because Carullo’s tes-
timony placed Balano in situations that Johnston’s testi-
mony had not,’ however, Balano plausibly argues that cross-
examination was necessary to ferret out the alleged respec-
tive acts of Rosen and Balano.
B.
Although confrontation values are of constitutional
magnitude, they may, of course, be waived. See Brook-
hart v. Janis, 384 U.S. 1, 4 (1966). We must determine
whether threats by a defendant on a witness’ life may con-
stitute a waiver. We must also decide whether the evi-
dence of such threats was, in this case, sufficient to warrant
the judge’s determination that coercion existed. We an-
swer both questions affirmatively.
In United States v. Carlson, 547 F.2d 1346 (8th Cir.
1976), cert. denied, 431 U.S. 914 (1977), the Eighth Circuit
held that “if the witness’s refusal to testify was procured
by the accused, no confrontation rights are denied.” 547
F.2d at 1358. In Carlson, a government witness refused to
Footnote continued—
Fifth Circuit found her to be an available witness under the evi-
dence rules, and held that statements made by her to government
agents were inadmissible hearsay. Her live testimony would have
been “more probative on the point for which it [was] offered.”
Fed. R. Evid. 803(24). Although the court did not reach the
Sixth Amendment issue, it did express “grave doubts” that those
rights were not violated. 559 F.2d at 299.
7, For example, Johnston testified that Rosen had gotten
clothing for Carullo and Johnston. Record, vol. 3, at 32; vol. 5,
at 223. Carullo’s testimony attributed the clothing to “they.”
Record, vol. 5, at 307. Johnston specified that Rosen had pro-
vided a suitcase for the robbers. Record. vol. 5, at 223. Carullo,
however, referred again to “they.” Record, vol. 5, at 308.
AQ
testify because, as he intimated to government agents, he
had received threats from the defendant. The district court
heard testimony from the agents to whom the witness
had spoken and found that the defendant had indeed made
the witness unavailable for trial.’ The Eighth Circuit
noted:
[T]he law [should not] permit an accused to subvert
a criminal prosecution by causing witnesses not to
testify at trial who have, at the pretrial stage, dis-
closed information which is inculpatory to the accused.
To permit the defendant to profit from such conduct
would be contrary to public policy, common sense and
the underlying purpose of the confrontation clause.
Id. at 1359. We agree that, under the common law prin-
ciple that one should not profit by his own wrong, coercion
can constitute voluntary waiver of the right of confronta-
tion.°
We also believe that the trial court had before it suf-
ficient evidence to justify its finding of coercion. We
recognize that often the only evidence of coercion will be
the statement of the coerced person, as repeated by gov-
ernment agents. Consequently, a reasonable doubt stan-
dard for admission might well preclude a finding of waiver,
no matter how reprehensible the defendant’s condvct. On
the other hand, we do not wish to emasculate the Confronta-
tion Clause merely to facilitate government prosecutions.
8. The agent also testified that the witness had reiterated
the truthfulness of his grand jury testimony. 547 F.2d at 1353.
9. United States v. Mathis, 559 F.2d 294 (Sth Cir. 1977),
discussed at note 6 supra, contains language that Balano believes
supports his position: “[O]ur law provides methods to alleviate
these deplorable practices [intimidation of witnesses] other than
through interpretations of evidentiary rules which may seem to
be fair in a particular case yet establish an impermissible legal
precedent for subsequent cases.” Id. at 299-300. However, since
the intimidated witness in Mathis was an “available” witness, the
waiver issue was not addressed.
Al0
Thus, a prima facie showing of coercion is not enough.
We hold, therefore, that before permitting the admission of
grand jury testimony of witnesses who will not appear at
trial because of the defendant’s alleged coercion, the judge
must hold an evidentiary hearing in the absence of the
jury and find by a preponderance of the evidence that the
defendant’s coercion made the witness unavailable.
The district court’s determination in this case followed
a careful, thoughtful hearing, and was supported by suf-
ficient evidence. The district judge noted, prior to re-
ceiving evidence at the hearing, that the government would
be required ‘‘to satisfy the Court that threats imminented
[sic] from the defendants to the witness ‘shutting his
mouth’ so to speak.” Record, vol. 8, at 9-10. To that
purpose, he heard testimony first from Carullo himself
who, although he would not discuss his reasons for refusing
to testify at Balano’s trial, reiterated that his grand jury
testimony was truthful and that he had previously so told
a government agent." Id. at 23, 25. FBI agent Reuschlein
then testified in detail about his various meetings with
Carullo. Reuschlein testified that at an interview in
April 1976 (following the grand jury testimony and
Carullo’s imprisonment), Carullo stated “that there had
been different threats made, and for fear, and the fact that
he was recently married, and was a resident of the City
. +. and that he wanted to continue to live in that area,”
he would not testify. Id. at 32-33. In talking with Reusch-
lein, Carullo mentioned two specific threats. First, an
employee at his uncle’s bar received a phone call to the
effect that “if anybody testified in the matter . . ., they
could be killed.” Id. at 33. Second, on an occasion when
10. Under our analysis, based on waiver, we are not relying
on Carullo’s failure to repudiate his grand jury testimony as an
indicium of reliability that itself justifies admission. However,
Carullo’s consistency could reasonably have led the trial court to
give greater weight to Carullo’s statements about coercion.
)
All
Carullo was working at another bar, Pat O’Brien’s, Balano
himself came in and said, ‘Well, you know, we could get
somebody killed if any statements were made regarding
the matter.”"* Agent Reuschlein’s notes, made at the time
of the interview, confirmed his testimony. Id. at 34-36.
As a result of the evidence of threats made by Balano,
the district court concluded that Balano had waived his
right to confrontation and properly ruled that the Carullo
grand jury testimony was admissible against Balano but
not against the other defendants. Record, vol. 1, at 109.
At the beginning of the second trial, Balano’s attorney
produced a letter written to him by Carullo. In the letter
Carullo indicated that he did not remember seeing Balano
at Pat O’Brien’s and attributed his earlier statements to
governmental pressure.” The district court determined
that this letter affected only the question of credibility,
which he as the fact-finder for admissibility purposes had
to resolve. The court felt that the letter showed that
11. Balano suggests that this threat was “obviously ex-
tremely ambiguous.” Reply Brief for Appellant at 13. In dis-
cussing the possible meanings the statement could have, how-
ever, Balano provides only examples that would give pause to
any reasonable person who is considering testifying. Id. We
do not see any ambiguity in intended effect.
_ The body of the letter addressed to Balano’s attorney
reads:
I want to clarify a statement I made more than two
years ago, When I was under duress and pressure of the
Federal Government, And at a time when I was personally
involved in serious litigation.
It is possible that because of mental anguish and severe
pressure at the time, That I may have said I was with Phil
Balando [sic] at Pat O’Briens, but I do not remember seeing
him or talking to him.
In a very short time I will be able to return home, And
have but one desire, to live quietly, And peacefully, with
my wife as we try to catch up three lost years in our lives.
In no way do I wish to be involved in any thing that will
cause trouble for anyone.
Record, vol. 2, at 342.
Al2
Carullo was scared and was saying, in essence, “I just
don’t want to cause trouble for anyone.” Carullo, that is,
might well have come to reaiize that his grand jury testi-
mony, which he did not repudiate, was likely to be ad-
mitted and that his life was therefore still in danger.
Record, vol. 4, at 21-22. Because of the evidence he had
at his disposal in making this determination, we cannot
say that the district judge’s resolution was error.
ITI,
In challenging the sufficiency of the evidence to sup-
port his conviction, Balano urges that the government did
not prove the existence of an underlying offense against
the United States, Balano’s knowledge of that offense or
any criminally liable assistance by Balano. Any of these
failures of proof would require reversal. However, view-
ing the evidence in a light most favorable to the govern-
ment, as we must on appeal, we reject these contentions.
The applicable accessory statute requires that the de-
fendant act “knowing that an offense against the United
States has been committed.” 18 U.S.C. § 3 (1976). The
indictment itself contained greater specificity, alleging
that Balano had acted “well knowing that [Carullo and
Johnston] had transported in interstate commerce stolen
goods valued at $5,000 or more.” Record, vol. 1, at 2.
Balano charges that his knowledge of neither the fact of
interstate transfer of the coins nor of the coins’ value
was proven. He further argues that the accessory after
the fact charge requires proof of the completion of the
underlying crime but that trial evidence “showed con-
clusively that Carullo and Johnston were still in the
escape phase of their crime and had thus not yet com-
pleted it.” Brief for Appellant at 38. Thus, Balano argues,
he should have been charged, if at all, as an aider and
abettor under 18 U.S.C. § 2 (1976).
Al3
This court has held that the prosecution need not prove
elements of an indictment that are mere surplusage. See
United States v. Archer, 455 F.2d 193, 194 (10th Cir.), cert.
denied, 409 U.S. 856 (1972). The coins’ value and their
interstate transmission do not affect the existence of the
underlying crime, but merely the existence of federal
jurisdiction. We do not require the government to prove
the defendant’s knowledge of jurisdictional elements. See
United States v. Feola, 420 U.S. 671, 685 (1975); United
States v. Hobson, 519 F.2d 765, 769-70 (9th Cir.), cert.
denied, 423 U.S. 931 (1975); United States v. Smaldone,
485 F.2d 1333, 1348-49 (10th Cir. 1973), cert. denied, 416
U.S. 936 (1974). Evidence was certainly admitted from
which the jury could infer that Balano knew of the
existence of an underlying crime.
We note further that the district court instructed that
the jury must find knowledge of the jurisdictional ele-
ments, Record, vol. 2, at 275, and the jury apparently so
found. Johnston testified that he personally told Balano
that Carullo and he had robbed the Mission Coin Shop.
Record, vol. 4, at 105. Johnston also testified that, with
Balano present, he said that the getaway car had been
ditched on the Missouri side of the river. Id. Finally,
Carullo’s grand jury testimony indicated that Johnston
and Carullo informed Rosen and Balano of the robbery
and that the robbers wanted $12,000 for the coins. Record,
vol. 5, at 306. Hence, even under the heightened standards
set by the instructions to the jury, we cannot say that
the verdict was an unreasonable one.
Balano’s argument that Carullo and Johnston were
still in the escape phase of their crime when they reached
the loan office is similarly without merit. There is no
doubt that one who assists in an escape should be charged
under 18 U.S.C. § 2 rather than 18 U.S.C. § 3. See United
Al4
States v. Willis, 559 F.2d 443 (5th Cir. 1977); United States
v. Barlow, 470 F.2d 1245, 1252-54 (D.C. Cir. 1972); United
States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir. 1970).
It is not necessary, however for the principals to have
come to a final resting place for the escape to have ended.
The escape phase doctrine was developed to deal with
those who are entangled in the consummation of the crime
itself, such as getaway car drivers. In contrast, accessories
after the fact “[obstruct] justice by rendering assistance
to hinder or prevent the arrest of the offender after he
has committed the crime.” United States v. Barlow, 470
F.2d at 1253.
Carullo and Johnston crossed the state line again after
leaving Sol’s Loan Office, and the sale of the coins took
place shortly thereafter. However, sufficient evidence was
admitted at Balano’s trial to permit the jury to infer that
Carullo and Johnston had made prior arrangements to
“fence” the coins at Sol’s. E.g., Record, vol. 4, at 81-87.
Although they did not ultimately fence the coins there,
a finding that the events at Sol’s were beyond the escape
phase is entirely consistent with the testimony of Carullo
and Johnston. The getaway car had been abandoned, and
no more furtive action was taken. We cannot consider
an escape to continue until an ultimate buyer is found.
The court’s dismissal of the third count, based on 18 U.S.C.
§ 2, at the end of the first trial was therefore proper, and
we cannot say the submission of the second count to the
jury was improper.
Although his actions were certainly not overwhelming
in scope, even as charged, we also cannot accept Balano’s
contention that he did not assist Carullo and Johnston so
as to hinder their apprehension, trial or punishment. Ba-
lano argues that the evidence linked him only to the pro-
vision of a razor for Carullo and that further evidence
Al5
showed Carullo to have been cleanshaven at the time.
Brief for Appellant at 42. However, other evidence sug-
gested that Carullo had both long, heavy sideburns and
several days’ growth of beard. E.g., Record, vol. 5, at 176.
If so, provision of the razor aided a change of appearance,
as Carullo’s grand jury testimony indicated. Record, vol.
5, at 307. Indeed, we would expect the razor to have
served some purpose. Furthermore, although the evidence
other than Carullo’s equivocal grand jury testimony was
circumstantial, it was sufficient to permit the jury to infer
that Balano participated in the other actions alleged in the
indictment: providing clothes, a suitcase and use of the
bathroom. Johnston testified that Balano was given two
goid coins to reward him for his efforts. Record, vol. 4,
at 104; vol. 5, at 200. Therefore, we cannot agree, as Balano
suggests, that his actions were “mere acts of charity,” which
did not hinder the apprehension of Carullo and Johnston.
Brief for Appellant at 43.
IV.
The trial judge determined that Reese, the purchaser
of the stolen coins, was unavailable because of illness and
directed him to answer a set of interrogatories. Nearly all
of the answers were admitted into evidence. Balano
charges as error the court’s refusal to permit the admission
of one particular answer, which he asserts was vital to
the impeachment of Johnston’s testimony. We find, how-
ever, no abuse of the trial court’s discretion.
Johnston testified that of the 110 stolen coins, 106 were
sold to Reese and four were given to Rosen and Balano.
Record, vol. 5, at 198. As part of the disputed interroga-
tory answer, Reese appended a portion of his own grand
jury testimony, Record, vol. 2, at 260-61, in which he
quoted one Richard Ratty as saying, three months after
the robbery, ‘‘[Johnston] told me that he had some gold
Al6
coins to sell.” Although Ratty would not say whether
he had personally purchased any of the coins from John-
ston, the conversation led Reese to conclude that he had
not purchased all of the stolen coins, Reese said: ‘‘I don’t
think I got them all.” Id. at 261. Balano contends that the
Reese answer undercuts Johnston’s testimony concerning
the disposition of the coins and that ‘“‘[e]vidence bearing
on the credibility of an important witness is never collateral
or irrelevant.” Brief for Appellant at 44. Balano further
argues that, because Reese was unavailable as a witness,
“the defense had no other means to bring the evidence
to light.” Id. at 45. The trial judge, however, excluded
the grand jury testimony on grounds of hearsay and lack
of relevance. Record, vol. 6, at 467-68.
We cannot agree that the trial judge abused his dis-
cretion in excluding the answer. Particularly given the
three month intervening period, the statements of Ratty
were at best tangentially related to any issue at trial,
including the credibility of Johnston. Moreover, another
source of the evidence was apparently available. We must
assume from the record before us that Ratty himself was
available to testify; the government attorney so stated at
trial, and Balano’s attorney did not contradict him. Record,
vol, 6, at 468. We cannot accept Balano’s professed belief
in the critical nature of the evidence when he did not
take the most obvious step to secure that evidence.
V.
Balano argues that the trial judge was required to
grant the motion for judgment of acquittal at the end of the
first trial and that, as a result, his conviction is barred
under double jeopardy standards.’ Balano’s contention is
13. The denial of the motion was not appealable at the end
of the first trial. See United States v. Kaufman, 311 F.2d 695
(2d Cir. 1963). Because of its double jeopardy ramifications,
that denial is now clearly appealable. See Abney v. United
States, 431 U.S. 651, 656-62 (1977).
Al7
based on the premise that only Carullo’s grand jury tes-
timony, not used in the first trial, and certain changed as-
pects of Johnston’s testimony at the second trial made the
conviction possible and, without that evidence, acquittal
was mandated. We disagree.
The argument has plausibility only because of Balano’s
belief that knowledge of jurisdictional elements in the in-
dictment must be proven. The new evidence did con-
siderably strengthen the government’s position on these
issues. However, as we noted in Part III, supra, the gov-
ernment was not required to prove the surplusage of the
indictment. Because there was other evidence sufficient
to support a conviction, the district judge did not abuse
his discretion in denying the motion, and the double jeop-
ardy issue is not reached.
VI.
Finally, Balano argues that the indictment did not
state a public offense because it did not sufficiently plead
the existence of an underlying offense against the United
States. The alleged deficiency lies in the failure of the
indictment to allege affirmatively that the underlying
crime was not barred by the statute of limitations. Fur-
thermore, since an accessory after the fact violation pre-
supposes the completion of an underlying crime, Balano
argues that the date of that crime must be pleaded in
order to show the proper ordering of events. We find
these arguments to be without merit.
The statute in question, 18 U.S.C. § 3 (1976), does re-
quire an underlying federal crime. By its terms, however,
14. Based on his lengthy legal experience, the district judge
expressed “grave doubts” that Johnston’s testimony alone would
in fact convince a jury. He correctly decided, however, that he
should not invade the jury’s fact-finding realm because a jury
could convict on the basis of Johnston’s testimony. Record, vol.
1, at 33.
Al8
it does not require that the date of that crime be pleaded.
Indeed, since the acts of an accessory occur after the fact,
it is conceivable that the limitation period for an underly-
ing crime could run while the accessory offense remains
prosecutable. We believe that the accessory statute re-
quires only the commission of an offense against the United
States, not that the offense be prosecutable or actually
prosecuted. Furthermore, the indictment clearly required
proof that Balano knew of the underlying offense. For the
government to provide that proof, as it did, the underlying
offense must have been completed. No greater showing of
proof ordering was necessary.
Balano incorrectly relies on United States v. Gammill,
421 F.2d 185 (10th Cir. 1970), in which the year of the
offense was omitted from the indictment. The indictment
therefore did not charge criminal conduct committed with-
in the applicable limitation period. Id. at 186. No such
problem exists in the instant case.
AFFIRMED.
No. 78-1314 - UNITED STATES OF AMERICA
v. PHILLIP R. BALANO
HOLLOWAY and LOGAN, Circuit Judges, concurring:
We concur in everything stated in the opinion in this
case except the discussion of the confrontation clause rights
in Part II.A. of Judge McKay’s opinion. We neither agree
nor disagree with the discussion of those confrontation
clause rights and United States v. West, 574 F.2d 1131 (4th
Cir. 1978). We do not have to reach the point discussed
there because if Balano had such rights they were waived,
as the trial judge found and as this opinion affirms. We
would prefer to wait until we have a case which requires
a decision on that issue.
Al9
APPENDIX B
MAY TERM - May 20, 1980
Before Honorable Oliver Seth, Chief Judge, Honorable
William J. Holloway, Jr., Honorable Robert H. Mc-
Williams, Honorable James E. Barrett, Honorable
William E. Doyle, Honorable Monroe G. McKay, Hon-
orable James K. Logan and Honorable Stephanie K.
Seymour, Circuit Judges
No. 78-1314
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
PHILLIP R. BALANO,
Defendant-Appellant.
This matter comes on for consideration of the petition
for rehearing and suggestion for rehearing en banc filed
by the appellant in the captioned case.
Upon consideration whereof, the petition for rehearing
is denied by Circuit Judges Holloway, McKay and Logan,
to whom the case was argued and submitted.
The petition for rehearing having been denied by the
panel to whom the case was argued and submitted, and
no member of the panel nor judge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc, Rule 35 “ederal Rlues of Appellate
Procedure, the suggestion for renearing en banc is denied.
Howard K. Phillips,
Clerk
/s/ Robert L. Hoecker
By: Robert L. Hoecker
Chief Deputy Clerk
A20
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
No. 76-39-CR2
UNITED STATES OF AMERICA,
Plaintiff,
vs.
SAMUEL BERNSTEIN, PHILLIP BALANO
and SAUL ROSEN,
Defendants.
MEMORANDUM AND ORDER
(Filed May 31, 1977)
This matter comes on after hearing upon defendants’
objection to the government’s Notice of Intent to offer at
trial the grand jury testimony of Dominick J. Carullo if
Carullo proves unavailable to testify at trial. The govern-
ment has reason to believe Carullo will be unavailable at
trial in that he refused to testify at the first trial upon
this matter even though he was granted immunity as to
such testimony and was sentenced to six months additional
imprisonment for his subsequent refusal. Carullo filed with
the Court prior to this hearing an affidavit stating he will
again refuse to testify for fear of his own and his family’s
safety. At heaging upon this matter Carullo did once
again refuse to testify as to the matter contained in his
grand jury testimony.
The United States alleges Carullo’s testimony is neces-
sary to its case against defendants in that Carullo alone
A21
can testify as to some alleged dealings with defendants,
and in other matters it bolsters the trial testimony of the
only testifying alleged co-conspirator, Johnston. At hear-
ing F.B.I. Special Agent Reuschlein testified he showed
Carullo a copy of his October 24, 1975 grand jury testi-
mony on April 6, 1976, and asked him if such statement was
true and correct. Carullo replied affirmatively. Reuschlein
also informed Carullo he might be required to testify to
the same matters at trial. Carullo indicated he would not
testify because he feared for his life if he did so. One
specific threat Carullo related to Reuschlein was made to
him by defendant Balano who came to Carullo’s place of
employment, asked if Carullo or Johnston had talked to
the F.B.I., and said to Carullo, “Well you know we could
get somebody killed if any statements were made regarding
the matter.”
Defendants contest the admissibility of the grand jury
Statement upon several grounds. They allege it is not more
probative than a trial statement by Johnston, is not trust-
worthy, and will not serve the interests of justice. See,
Federal Rules of Evidence 803(24), and 804(b) (5). De-
fendants allege Carullo’s April 6, 1976 statement to Reusch-
lein contradicts an earlier grand jury statement as to an
incident wherein someone approached Carullo and offered
money for him to “take care of” Johnston.
The Court finds no contradiction in Carullo’s state-
ments relating various threats made to him concerning his
own, his family’s or Johnston’s safety should Carullo or
Johnston talk the the authorities. Furthermore, from evi-
dence and testimony at the hearing the Court finds one
specific threat motivating Carullo to refuse to testify at
trial to be that made to him at his place of employment by
defendant Balano. The Court also finds Carullo’s grand
jury testimony made under oath, the truth of which he has
never refuted, to have every indicia of credibility. The
A22
Court finds such statement by Carullo to be the most
probative evidence as to material facts stated therein of any
other evidence the United States can procure.
The Court has no doubt that Carullo is “unavailable”
under Federal Rules of Evidence 804(a)(2) in that he
“persists in refusing to testify concerning the subject mat-
ter of his statement despite an order of the Court to do so.”
Notice was also given to defendants of the government’s
intent to use Carullo’s prior grand jury testimony well in
advance of its proposed use as required by Rule 804(b) (5).
Defendants contend their constitutional rights of con-
frontation will be violated should testimony elicited from
Carullo through the government’s questioning at a time
when defendants had no right to confront or cross-examine
him be presented at trial as substantive evidence. This
is an issue viewed seriously by the Court in that the right
to confrontation and cross-examination, although not with-
out exception, is a basic constitutional right. Any excep-
tions to such right when a witness is unavailable but has
made a prior statement are considered on a case-by-case
basis and the focus of the Courts’ concern has been to
insure that there are indicia of reliability such that the
trier of fact has a satisfactory basis for evaluating the
truth of the prior statement. Mancusi v. Stubbs, 408 U.S.
204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 292 (1972). Even with
such indicia of reliability, it appears no Court has been
willing, without more, to sanction use of an unavailable
witness’ grand jury testimony as substantive evidence at
trial to reflect upon a defendant’s guilt. This Court shares
the view that an unavailable witness’ grand jury testimony
should not be admissible as substantive evidence of a de-
fendant’s guilt without some act or statement on the de-
fendant’s part evidencing a waiver of the right to confron-
tation and cross-examination.
A23
The Sixth Amendment right of confrontation is a per-
sonal right of the accused, intended for his benefit, and as
such can be waived by the defendant. United States v.
Carlson, No. 76-1363 (8th Cir., Dec. 19, 1976). A defendant
who, through threats or actual physical harm, procures the
“unavailability” of a potential witness against him cannot
be permitted to derive benefit from such conduct.
When a defendant, through his own wrongful acts,
causes the unavailability of a witness who has testified
previously in a pretrial proceeding, then such defendant
actively waives his right to confront the witness at trial.
United States v. Carlson, supra. If the pretrial testimony
is found by the Court to fulfill the truthfulness and neces-
sity requirements of Rule 804(b)(5), then such is ad-
missible at trial as against that defendant. In this case
defendant Balano, through his threat to Carullo, created
the situation of Carullo’s unavailability to testify at trial.
Such action by Balano constituted effective waiver of his
right to confront and cross-examine Carullo as to state-
ments made by Carullo to the grand jury.
Defendants Bernstein and Rosen were neither alleged
nor shown to have made nor caused to be made any threats
to Carullo. They have not waived their right to confront
and cross-examine Carullo, and therefore Carullo’s grand
jury statements are not admissible and would be preju-
dicial as to them.
For the above reasons, the Court finds Carullo’s grand
jury testimony is admissible as substantive evidence of
guilt in a criminal trial against Balano alone as a severed
defendant. Such testimony, without the opportunity for
confrontation and cross-examination, and without waiver
of such right, is not admissible in this trial against defen-
dants Bernstein and Rosen. Nor would it be admissible in
a joint trial of Bernstein, Rosen and Balano against Balano
A24
alone under a limiting court instruction because of the
danger of either possible disregard of the instruction by
some juror, or prejudice to the remaining two because of
association with Balano as co-defendant.
IT IS SO ORDERED at Wichita, Kansas, this 27th day
of May, 1977.
/s/ Frank G. Theis
United States District Judge
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.