# Petition — Attorney General of New Jersey v. Bisaccia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1042

## Text

ret ( ee 5 7 A si “4 a
No.
sentient ae § 1980

In THE L

‘

Supreme Court of the United States

Ocroser Term, 1980

THE ATTORNEY GENERAL OF NEW JERSEY,

Petitioner,
vs.

ROBERT BISACCIA,
Respondent.

On Writ of Certiorari to the United States Court of Appeals
for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Joun J. Deanan,
Attorney General of New J ersey,
Attorney for Petitioner.

Donatp S. Cosury,
Essex County Prosecutor,
Essex County Courts Building,

Newark, New Jersey 07102.
(201) 961-7470

Sreven J. Karrowrrz,
Assistant Essex County Prosecutor,
Rosert E. RocurForp,
Deputy Attorney General,
the Petition.

Adams Press Corp., 5 Commerce

Street, Newark, N. J. 07102—(201) 623-8611

“weOHAEL RODAK, JR., CLERK

Questions Presented for Review

1. Did the Third Cireuit Court of Appeals, contrary
to decisions of the Second and Eighth Circuits, err in find-
ing the existence of exhaustion of state court remedies
when respondent did not afford the state courts the op-
portunity of passing upon a federal constitutional claix
of a denial of due process with respect to the admissi-
bility of evidence and instead merely contended that he
was denied a “fair trial”?

2. Whether the due process clause of the Fourteenth
Amendment precludes the admission, in a state criminal
trial for conspiracy, of evidence that a witness at the trial,
who was available for cross-examination, and was, in fact,
extensively cross-examined, previously pleaded guilty to the
same conspiracy charge?

Li]

TABLE OF CONTENTS

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~~

BISACCIA, ROBERT, Appellant
Vv.

THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY

On AppeaL From tHe Unirep Srares
District Court For tue District or New JERSEY

(D.C. Civ. No. 79-0301)

»™
—

Argued March 17, 1980

[la]

2a
Appendix A

Before: Srrrz, Chief Judge, HiaarnsorHam,
Circuit Judge and Simmons, District Judge*

(Opinion filed June 12, 1980)

Auten C. Marra (Argued)

356 Millburn Avenue

Millburn, New Jersey 07041
Attorney for Appellant

JouHn J. Deanan

Attorney General of New Jersey
State House Annex
Trenton, New Jersey 08625

Donatp 8. Copurn
Prosecutor, Essex County

Steven J. Kariowrrz (Argued)
Assistant Prosecutor, Essex County

Essex County Courts Building

Newark, New Jersey 07102
Attorneys for Appellee

OprInion OF Tue Court

A. Leon Hiccrnsornam, Jr., Circuit Judge

This is an appeal from a denial of a petition for a
writ of habeas corpus. The district court held that the

* Honorable Paul A. Simmons, United States District Judge
for the Western District of Pennsylvania, sitting by designation.

3a
Appendix A

appellant had failed to satisfy the “exhaustion of state
remedies” requirement of 28 U.S.C. §2254(b) and had
failed to demonstrate a constitutional violation as required
by 28 U.S.C. §2254(a). We disagree with both of these
conclusions and therefore will reverse.

I,

The appellant, Robert Bisaccia, was convicted in a New
Jersey state court along with three co-defendants of con-
spiracy, entering with intent to steal, and larceny of goods
of value in excess of $500. During the trial, the pro-
secution presented the testimony of a co-conspirator,
Joseph Cicala, who testified about his own plea of guilty
to a charge arising out cf the alleged conspiracy. Over
defense counsel objections, the trial judge permitted the
introduction of this testimony as to the guilty plea with-
out requiring the prosecutor to explain its purpose and
without cautioning the jury that evidence of this nature
could not be used as substantive proof of the existence
of a conspiracy. In his summation, the prosecutor addi-
tionally sought to impress the jury with the significance
of the guilty plea by stating:

[A] young man named Joseph Cicala pleaded guilty
to conspiring to break, enter and commit larceny
inside the Bruno home. They [the defendants] said
it never happened, you see. Mr. Cicala pleaded
guilty to something that didn’t happen.

Ladies and gentlemen, isn’t your intelligence being
insulted by an argument like that? I mean, aren’t
these defendants talking down to you as if you
were a bunch of five year old children?

4a
Appendix A

Quoted in State v. Stefanelli, 153 N.J. Super. 452, 458
(1977) (emphasis added). Bisaccia appealed his eonvie-
tion, along with his co-defendants, to the Appellate Divi-
sion of the New Jersey Superior Court. In his brief,
Bisaccia alleged numerous grounds for reversal, among
them the introduction of the Cicala guilty plea without
limiting instruction and the prosecutor’s subsequent com-
ments. He argued that the cumulative effect of these
errors impermissibly prejudiced his case:

An accused is not entitled to a trial perfectly free
from all error, but he is entitled as a constitu-
tional right to a fair trial and it is respectfully
urged that the manner in which the court below
conducted this hearing did not begin to render the
defendants a fair trial.

Brief to the New Jersey Superior Court, Appellate Divi-
sion at 37, reprinted in App., at 44a (emphasis added)
(hereafter Appellate Division Brief).

The Appellate Division agreed with the appellant's
attack on the unrestricted admission of the guilty plea,
finding that “[i]t is fairly apparent that the testimony of
Cicala with respect to the guilty plea was used for the
purpose of impressing the jurors of the existence of the
conspiracy.” 153 N.J. Super. at 459. On the basis of the
“prejudicial error inherent in the admission of such tes-
timony,” the Appellate Division coneluded that the trial
court “ “deprived the defendant of a very substantial pro-
tection to which he was entitled’” Jd. at 459, quoting
United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949),

The New Jersey Supreme Court then granted certifica-
tion on the issue of the guilty plea testimony. The court

5a
Appendix A

addressed the appellant’s constitutional argument in terms
of the Sixth Amendment confrontation right and, because’
of the availability of cross-examination, found no viola-
tion. While finding that the trial court erred in failing to
issue cautionary instructions to the jury regarding the
testimony, the court held nevertheless that the error “did
not have a clear capacity to produce an unjust result” and
was harmless, State v. Stefanelli, 78 N.J. 418, 437 (1979).
The question of harmless error was answered in terms of
New Jersey evidentiary law. Bisaccia’s conviction was re-
instated. His habeas corpus petition to the district court
was denied and this appeal followed. The district court
based its denial of the habeas corpus petition on the
grounds that the appellant failed to exhaust his remedies
in the state court system and that the error alleged did not
violate the United States Constitution. We disagree.

II.

The requirement, embodied in 28 U.S.C. §2254(b), that
state remedies must be completely exhausted before fed-
eral courts will grant habeas corpus reief is well setted.

‘The relevant statutory provisions are 28 U.S.C. §2254(a) &
(b) and provide as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge
or a district court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or
treaties of the United States.

(Footnote continued on following page)

6a
Appendix A

Ex Parte Royall, 117 U.S. 241, 253 (1886). The United
States Supreme Court has more recently articulated a
standard for determining what constitutes sufficient ex-
haustion. In Fay vy. Noia, 372 U.S. 391, 428 (1963), the
Supreme Court held that a “federal claim must be fairly
presented to state courts.” In determining what consti-
tutes a fair presentation, the Supreme Court has required
that the claim presented to the state court be the “sub-
stantial equivalent” of the claim asserted in a federal ha-
beas corpus petition. Picard v. Connor, 404 U.S. 270, 278
(1971). The Court in Picard carefully noted that “[w]e
do not imply that respondent could have raised the [con-
stitutional] claim only by citing ‘book and verse on the
federal constitution’... . We simply hold that the sub-
stance of a federal habeas corpus claim must first be pre-
sented to the state courts.” Jd. A determination of whether
the substance of the appellant’s claim was advanced in the
state proceedings requires “a searching scrutiny by the
federal habeas court of the points that were raised in the
state tribunals, in order to ensure that the state system was
granted a fair opportunity to confront arguments that are
propounded to the federal habeas courts.” Zicarelli vy. Gray,
043 F.2d 466, 472 (3d Cir. 1976) (en banc).

(Footnote continued from preceding page)

(b) An application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a state
court shall not be granted unless it appears that the applicant
has exhausted the remedies available in the courts of the
State, or that there is either an absence of available State
corrective process or the existence of circumstances render-
ing such process ineffective to protect the rights of the
prisoner.

Ta
Appendix A

The district court found Bisaccia’s presentation of is-
sues to the New Jersey courts dissimilar to those presented
in his petition for federal habeas corpus. It held that he
failed to present his constitutional arguments to the state
courts and thus the state courts did not have a fair Op-
porunity to consider the constitutional implications of the
trial court’s error. The district court opinion notes that
the only “constitutional” reference made by appellant be-
fore the New Jersey courts was the “eryptic” argument
that “he is entitled as a constitutional right to a fair trial.”
Appellate Division Brief, App., at 44a. The appellee fur-
ther points out that not even the federal constitution was
specified by the appellant. Moreover, it is suggested that
this vague reference addressed not only the issue of the
use of the guilty plea but also the alleged bias of the trial
judge and the violation of the rules of pretrial discovery.
In support of its contention that the appellant’s claim was
not fairly presented, the appellee relies on Wilson v. Fogq,
O71 F.2d 91, 94 (2d Cir. 1978), which held that the failure
to raise a constitutional violation altogether, but with a
citation to cases addressing a particular issue in constitu-
tional terms, “hardly amounts to providing the state courts
with the ‘fair opportunity’ to weigh the constitutional claim
required by Picard. ...” Alhough these arguments are not
totally without merit, we nevertheless conclude that the
appellant’s broadly alleged constitutional argument, to-
gether with the repeated assertion that he was denied a
fair trial, is enough to satisfy the exhaustion requirement.
In Zicarelli v. Gray, this court:noted that in order to de-
termine whether the “same claim” or the “subsequent equiv-
alent” of the claim has been previously presented to the
state courts, it is necessary to ask whether the “method
of analysis” asserted in the federal courts was readily avail-
able to the state court. 543 F.2d at 472.

8a
Appendix A

In reversing the appellant’s conviction, the Appellate
Division, relying on United States v. Toner, 173 F.2d 140
(3d Cir. 1949), explicitly concluded that Bisaccia’s trial
was so wrought with unfairness as to require setting aside
the verdict of the jury. “Because of the error... relating
to the testimony of Cicala with respect to his guilty plea
to the conspiracy charge, we find defendants to have been
prejudiced to the extent that they were denied a fair trial.”
153 N.J. Super. at 460. While the Appellate Division did
not cite to the Fourteenth Amendment in its reversal, its
“method of analysis” was consistent and synonymous with
the classic findings required for Fourteenth Amendment
due process violations:

It is fairly apparent that the testimony of Cicala
with respect to the guilty plea was used for the pur-
pose of impressing the jurors of the existence of the
conspiracy. After all, an individual would not plead
guilty to a conspiracy that did not exist. We believe
even the inference to be drawn from this testimony
created prejudice which had to affect the outcome of
the trial. In addition, no limiting instruction was
given by the trial judge so that the jurors were
permitted to use Cicala’s testimony as they pleased.

153 N.J. Super. at 459 (emphasis added).

Although the New Jersey Supreme Court majority ap-
parently believed there to be no such unfairness, it never-
theless pursued a method of analysis consistent with Four-
teenth Amendment due process determinations:

[A] guilty plea of one person as such cannot be con-
sidered satisfactory or worthy evidence of the guilt
of others even though similarly cireumstanced and

9a
Appendix A

is properly excludable under the axiom that a de-
fendant on trial is entitled “to have his guilt or inno-
cence determined by the evidence presented
against him, not by what has happened with regard
to a criminal prosecution against someone else.”
United States v. Toner, supra at 142; Babb v. United
States, supra at 542. Hence we conclude, as did the
court below, that Cicala’s guilty plea was inadmis-
sible as substantive evidence of the guilt of the de-
fendants.

78 N.J. at 433. Although it followed this analysis, the court
concluded that “the error did not have the clear capacity
to produce an unjust result and that it had a minimal effect
on the outcome of the trial.” 7d. at 437. The dissent by
Justice Pashman unequivocally states that the evidentiary
admission violated fundamental fairness:

It is patently wnfair to subject a defendant to crim-
inal sanctions merely because his alleged co-con-
spirator has not elected to stand trial. In effect, the
guilty plea evidence cannot be introduced because
its relevance is far outweighed by its potential pre-
judicial impact upon the jurors’ deliberations.

Id. at 441 (emphasis added). Justice Pashman’s state-
ment that the trial was “patently unfair” is a description
similar to the traditional characterizations used to assess
purported Fourteenth Amendment due process violations.
As Justice Frankfurter stated:

Due process of law, as a historic and generative
principle, precludes defining, and thereby confining,
these standards of conduct more precisely than to
say that convictions cannot be brought about by
methods that offend “a sense of justice.”

10a
Appendia A

Rochin v. California, 342 U.S. 165, 173 (1952). A trial
which is “patently unfair” surely offends the “sense of jus-
tice” that Justice Frankfurter described as an element of
due process.’

Particularly in view of Justice Pashman’s finding that
the admission of the evidence was “patently unfair,” there-
by casting his dissent in constitutional language, this is
not a case, as with Wilson or Picard, where the state courts
had no indication of constitutional infirmity Nor does Zi-
carelli undercut the appellant’s position. In that case, a
state prisoner alleged that his constitutional rights were
violated when he was tried by a jury selected from resi-
dents of a county other than the one in which the alleged
crimes were committed and that he was denied his right
to trial by a jury comprising a representative cross-section
of the locale where the crimes took place. This court con-
cluded that the defendant had failed to exhaust his state
remedies by merely transmitting a letter to the New Jer-
sey Supreme Court highlighting a California case which
discussed the cross-section issue and by making further
reference to the decision at oral argument. Although Zi-
carelli’s state court briefs addressed the venue issue, they
ignored the cross-section claim. Thus, Judge Adams, writ-
ing for the court, concluded that “[s]uch an arrangement
hardly seems to conform to the Supreme Court criteria of
‘fairly presenting’ an issue. Nor does it appear to satisfy

* As the late Chief Justice Warren wrote in dissent in Spencer
v. State of Texas, 385 U.S. 554, 570 (1967):

[T]he criteria for decision in procedural due process cases
are necessarily drawn from the traditional jurisprudential
attitudes of our legal system rather than from a relatively
specific constitutional command.

lla
Appendix A

the comity rationale that undergirds the exhaustion rule.”
543 F.2d at 474-75,

Because the substance of the appellant’s state claim is
virtually indistinguishable from the due process allega-
tion now before the federal court, and because the method
of analysis is indistinct, the Picard test for exhaustion of
state remedies has been met. This conclusion is especially
appropriate because of the necessarily vague nature of a
due process allegation. Failure to invoke the Due Process
Clause more specifically should not therefore stand in the
appellant’s path to habeas relief, especially since the state
courts understood and considered the “substantial equiva-
lent” of the appellant’s claims before this court and the
court below.

Il.

It is a well-established principle that evidentiary er-
rors of state courts are not considered to be of constitu-
tional proportion, cognizable in federal habeas corpus pro-
ceedings, unless the error deprives a defendant of funda-
mental fairness in his criminal trial. Donnelly vy. De
Christoforo, 416 U.S. 637, 642-43 (1974); United States
ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.
1976), cert. denied, 430 U.S. 972 (1977). We next con-
sider whether use of the co-conspirator’s guilty plea rises
to the level of constitutional proportions. If so, the ap-
pellant will have satisfied the requirements of 28 U.S.C.
§2254(a).

It is well settled in this circuit that use of a co-con-
spirator’s guilty plea as substantive proof of a defend-
ant’s complicity in a conspiracy without cautionary in-

12a
Appendia A

struction is not admissible as evidence. United States
v. Toner, 173 F.2d 140, 142 (8d Cir. 1949). However,
as the district court noted, the cases address this issue
in evidentiary rather than constitutional terms. Indeed,
the appellee urges that the error merely amounted to
“evidentiary irrelevance.” We nonetheless disagree. The
use of such evidence is sufficiently unfair so as to raise
the spectre of unconstitutionality for purposes of habeas
corpus relief, We ground this conclusion on the concept
of fundamental fairness inherently required in every cri-
minal trial. Judge Goodrich’s eloquent statement in
United States v. Toner is our starting point:

From the common sense point of view a plea of
guilty by an alleged fellow conspirator is highly
relevant upon the question of the guilt of another
alleged conspirator. If A’s admission that he con-
spired with B is believed, it is pretty hard to avoid
the conclusion that B must have conspired with A.
This is one of the cases, therefore, where evidence
logically probative is to be excluded because of some
countervailing policy. There are many such in-
stances in the law. See 4 Wigmore, Evidence $1171
et seq. (3d Ed. 1940),

The foundation of the countervailing policy is the
right of every defendant to stand or fall with the
proof of the charge made against him, not against
somebody else. Acquittal of an alleged fellow con-
spirator is not evidence for a man being tried for
conspiracy. So, likewise, conviction of an alleged
fellow conspirator after a trial is not admissible
as against one now’ being charged. The defendant
had a right to have his guilt or innocence deter-

13a
Appendix A

mined by the evidence presented against him, not
by what has happened with regard to a criminal
prosecution against someone else. We think that
the charge given upon this point was contrary to
that rule and inadvertently, of course, deprived the
defendant of a very substantial protection to which
he was entitled.

173 F.2d at 142. (footnotes omitted). Judge Goodrich’s
rationale in Toner is bottomed as much on concepts of
constitutional fairness as on concepts of “evidentiary”
fairness. For the underlying purpose ultimately is to
assure a criminal defendant that his guilt or innocence
will be “determined by the evidence presented against
him, not by what has happened with regard to a criminal
prosecution against someone else.” Jd. The inherent un-
fairness and likely prejudice of such evidence in this
ease challenges our concept of due process. The Sev-
enth Circuit, in addressing the practice of introducing
evidence of other, related crimes, has noted:

When it must be said that the probative value of
such evidence, though relevant, is greatly out-
weighed by the prejudice of the accused from its
admission, then use of such evidence by a state
may rise to the posture of fundamental fairness
and due process of law.

United States ex rel. Bibbs vy. Twomey, 506 F.2d 1220,
1223 (7th Cir. 1974), quoting United States ex rel. Durso
v. Pate, 426 F.2d 1083, 1086 (7th Cir. 1970). Under the
circumstances here, the admission of the co-defendant’s
guilty plea, the failure of the trial judge to give cau-
tionary instructions to the jury about this evidence and

14a
Appendix A

the prosecutor’s comments on this evidence so exceeded
the tolerable level of ordinary trial error as to amount
to a denial of constitutional due process. As such, we
hold that the appellant has satisfied the requirement of
28 U.S.C. $2254(a).

IV.

Since the appellant has exhausted all available rem-
edies and since the error in this case may be viewed as
a violation of the appellant’s Fourteenth Amendment due
process right, this case must be remanded for a determi-
nation of whether it was harmless error. In order for
constitutional error to be found harmless, it must be “harm-
less beyond a reasonable doubt.” Chapman v. California,
386 U.S. 18, 24 (1967). The relevant question then is
“whether there is a reasonable possibility that the evi-
dence complained of might have contributed to the con-
viction.” Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963).

Applying the Chapman-Fahy test to the facts in this
case, a district court might well conclude that use of
the Cicala guilty plea as substantive evidence of Bisaccia’s
guilt without limiting instructions to the jury, coupled
with inflammatory prosecutorial remarks, might have con-
tributed in some meaningful sense to the conviction. The
district court found that even if the appellant had ex-
hausted his state remedies, he failed “to demonstrate a
constitutional violation by the trial court.” Because we
concluded above that a constitutional violation was dem-”
onstrated, the question remains whether under Chapman
the error here was harmless. The case will be remanded
for the limited purpose of making a finding on this latter
issue.

lda
Appendix A
V.

For the foregoing reasons, the order of the district
court dismissing the appellant’s petition for a writ of
habeas corpus will be reversed and remanded.

Seitz, Chief Judge, concurring.

I agree with the majority that appellant’s rights un-
der the federal Constitution were denied when the state
used a co-conspirator’s guilty plea as evidence of his guilt.
Therefore, I coneur in the decision to reverse the order
of the district court and to remand for application of
the harmless error standard of Chapman vy. California,
386 U.S. 18, 24 (1967). I write separately because I be-
lieve that appellant was denied his sixth amendment right
to be confronted with the witnesses against him. I would
avoid invoking the due process standard of fundamental
fairness.

The Supreme Court applied the confrontation clause
to restrict a prosecutor’s use of third-party convictions
and guilty pleas in Kirby v. United States, 174 U.S. 47
(1899). In a prosecution for receipt of property stolen
from the United States, the government’s proof of the
fact of theft from the United States consisted of guilty
pleas of three of the thieves and the conviction after
trial of a fourth. The Court reversed the receiver’s con-
viction, holding that he had not been “within the mean-

l6a
Appendix A

ing of the Constitution confronted with the witnesses
against him.” Jd. at 60.

It is important to note that the confrontation clause vio-
lation in Kirby did not result from the government’s fail-
ure to confront the defendant with the persons who had
pled guilty or had been convicted. The Court saw the effect
of the government’s use of third-party conviction records
and guilty pleas as allowing the government to use its wit-
nesses to prove facts incriminating to a defendant while
not allowing the defendant an opportunity to challenge, im-
peach, and cross-examine those witnesses. In the absence
of a restriction, the Court reasoned that the government
might use its witnesses to establish facts necessary to con-
vict a third person, either by presenting the witnesses at
trial or by inducing a guilty plea, and might then offer
the third person’s conviction in its prosecution of the de-
fendant as proof of the facts essential to spstain the
earlier conviction. Cf. Fed. R. Evid. 803 (22) (final judg-
ment of conviction entered after trial or guilty plea ad-

1 The statute at issue in Kirby provided that the conviction of
the principal felons for theft of property from the United States
was conclusive proof of the fact of theft in a subsequent prosecu-
tion of a receiver of the property. Act of March 3, 1875, ch.
144, §2, 18 Stat. 479 (1879). The district court instructed the
jury differently, charging them that the guilty pleas and conviction
constituted prima facie proof. See 174 U.S. at 50-51. The Su-
preme Court ruled that both the statutory standard of conclusive
proof and the district court’s modification violated the confronta-
tion clause: “The fundamental error in the trial below was to
admit in evidence the record of the conviction of the principal
felons as competent proof for any purpose.” Jd. at 60.

17a
Appendix A

missible to prove facts essential to conviction).? At no
point in this process would the government confront the
defendant with the witnesses that it assembled in its
prosecution of the third person. See generally Kirby, 174
U.S. at 55.

In appellant’s trial the state attempted to prove the
existence of a conspiracy involving appellant by intro-
ducing a co-conspirator’s guilty plea. In so doing, the
state violated appellant’s rights under the confrontation
clause, as construed in Kirby. The error was not avoided
by the opportunity that appellant had to cross-examine
the co-conspirator at trial. In Kirby, the Court addressed
a defendant’s right to confront not the third person who
pleaded guilty but the witnesses that the government would
have presented in a trial of the third person. We can have
no assurance that appellant had an opportunity to con-
front those witnesess at his trial.

In this sense, confrontation in the circumstances of
Kirby differs from the confrontation in the circumstances
of Bruton v. United States, 391 U.S. 123 (1968). In Bruton
the Court prohibited the use of a co-defendant’s confession
in a joint trial. There the Court addressed the right of a
defendant to confront and cross-examine his confessing
codefendant, a right which can be preserved when the co-
defendant testifies at trial and subjects himself to ecross-
examination. See Nelson v. O’Neil, 402 U.S. 622 (1970).

*This rule of admissibility does not apply when a third-party
conviction is “offered by the Government in a criminal prosecution
for purposes other than impeachment.” Fed. R. Evid. 803(22).
The purpose of this exception is to avoid a conflict with the right
of confrontation construed in Kirby. Fed. R. Evid. 803(22) (Ad-

visory Committee’s Note).

7+

18a
Appendiz A

The appellant has presented his claim of a deprivation
of confrontation rights to this court and to the district
court in terms of a violation of United States v. Toner,
173 F.2d 140 (3d Cir. 1949). In Toner, this court ruled that
the guilty plea of a co-conspirator was not admissible to
prove the guilt of a criminal defendant. The opinion does
not mention the confrontation clause specifically, and the
court might well have rested its ruling on different or addi-
tional grounds, including non-constitutional grounds.®
Nonetheless, the ruling in 7’oner was mandated by the Su-
preme Court’s construction of the confrontation clause in
Kirby. Therefore, I read Toner as reflecting the require-
ments of the confrontation clause and recognize that ap-
pellant has stated a sufficient claim of a violation of his
confrontatiqp rights.

Because the majority and I rely on different constitu-
tional claims, I must consider also whether appellant fairly
presented the substance of his federal claim to the Su-
preme Court of New Jersey and thereby satisfied the re-
quirement of exhaustion of state remedies, Picard v. Con-
nor, 404 U.S. 270, 278 (1971); Zicarelh v. Gray, 543 F.2d
466, 470-75 (3d Cir. 1976). The brief that appellant filed
in the Supreme Court of New Jersey argues explicitly
that the state’s violation of Zoner deprived him of rights
under the sixth amendment. Moreover, the opinion of the

8’ The opinion does address the same general concern addressed
in Kirby: the use of third-party guilty pleas to prove facts against
a defendant allows the government to rely on the establishment of
facts in a proceeding in which the defendant did not participate.
The court concluded, “The defendant had a right to have his guilt
or innocence determined by the evidence presented against him,
not by what has happened with regard to a criminal prosecution
of someone else.” Jd. at 142.

19a
Appendia A

New Jersey court discusses and rejects the suggestion that
the rule in Toner reflects the requirements of the confron-
tation clause. State v. Stefanelli, 78 N.J. 418, 396 A.2d
1105, 1111-12 (1979). It is true that appellant did not pre-
sent the New Jersey court with a citation of Kirby or with
an argument incorporating Kirby’s particular application
of the confrontation clause. However, because that appli-
cation of the confrontation clause derives from a reported
opinion of the Supreme Court of the United States, it is a
method of analysis readily available to the state court. Its
specific citation was not necessary to satisfy the exhaustion
requirement. Zicarelli v. Gray, supra at 472. I conclude
that appellant has satisfied the exhaustion requirement.

The majority reads Toner as reflecting the requirements
of the due process clause because its restriction on the
government’s use of third-party guilty pleas is an essen-
tial element of fundamental fairness. Donnelly v. De-
Christoforo, 416 U.S. 637, 642-43 (1974). Review of state
convictions under a standard of fundamental fairness al-
lows the federal court to ensure that state criminal defend-
ants do not suffer from trial errors that are inconsistent
with the concept of justice implicit in the due process
clause but are not prohibited by specific provisions of the
Bill of Rights. The fundamental fairness standard is
necessarily very general in its terms and not greatly re-
stricted in its application by specific precepts and prece-
dents. A court should not employ this standard when it
can base a finding of constitutional error on a specific pro-
vision of the Constitution. In this case, the court’s judg-
ment can rest on a specific provision of the Bill of Rights
and on a Supreme Court application of that provision to
the particular circumstances of this case. Invocation of the

20a
Appendia A

fundamental fairness standard of the due process clause
is unnecessary and best avoided.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuat

21a

APPENDIX B

Order Reversing Order of the District Court and
Remanding Cause Thereto, Dated June 12, 1980

UNITED STATES COURT OF APPEALS
For tue Turrp Circuit
No. 79-2040

?

BisaccrA, Rosert,

Appellant
vs.

THe ATTORNEY GENERAL OF THE State or New J ERSEY

(D.C. Civil No. 79-0301)

On APPEAL FROM THE Unirep Starzs District Court
FOR THE District or New JERSEY

>.
> a

Present: Srrrz, Chief Judge and Hiacrnsoruam, Circuit
Judge and Stmnons, District Judge*

* Honorable Paul A. Simmons, United States District Judge for
the Western District of Pennsylvania, sitting by designation.

22a
Appendix B
JUDGMENT

This cause came on to be heard on the record from the
United States District Court for the District of New Jer-
sey and was argued by counsel on March 17, 1980.

On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, filed May 3, 1979, be, and the same is hereby
reversed and the cause is remanded to the said District
Court for the limited purpose of determining whether the
constitutional error which is demonstrated in this case was
harmless beyond a reasonable doubt, all in accordance with
the opinion of this Court. Costs taxed against appellee.

ATTEST:

THomas P. Quinn
Clerk

June 12, 1980

23a

APPENDIX C

Indictment by the Grand Jury of Essex County, New Jersey,
Dated September 11, 1974

Essex County To Wir:

The Grand Jurors of the State of New Jersey, for the
County of Essex, upon their oath present that

Nicnotas SrTeranetui a/k/a Nicky Skins, GERALD
Spervuto, Rosert Bisaccia a/k/a CaBERT, JOSEPH
Cicata, Netson Tost, Sam Corsaro a/k/a Lirtie Sam
AND JOHN Quartuccio a/k/a Jounny RELIEF

between on or about the 15th day of J uly, 1972 and on or
about the 1st day of September, 1972, in the City of New-
ark and in the Town of Belleville, County of Essex afore-
said and within the jurisdiction of this Court, did commit
the crime of conspiracy in that then and there they un-
lawfully and corruptly conspired, confederated and agreed
among themselves and with Gerard Charles Festa, who is
named as a co-conspirator but not as a defendant herein,
wilfully and feloniously, (A) to break and enter the prem-
ises of Dominick Bruno, in violation of N.J.S. 2A :94-1 and
(B) to steal, take and carry away the money, goods and
chattels, of Dominick Bruno found therein, in violation of
N.J.S. 2A :119-2, contrary to the provisions of N.J.S. 2A:
98-1.

And the Grand Jurors aforesaid, upon their oath, do fur-
ther present that in execution of the said conspiracy and
to effect the objects thereof, the following Overt Acts were
committed between on or about the 15th day of July, 1972
and the Ist day of September, 1972.

24a
Appendix C
Overt Acts

1. JosepH Crcata told Gerard Charles Festa that
the Bruno house contained jewelry and money and
that the Bruno’s frequently spent weekends at the
shore.

2. Jonn Quartuccio a/k/a Jonnny Rewier and Ger-
ard Charles Festa inspected the premises in ques-
tion and found what appeared to be a burglar alarm
installation.

3. Gerard Charles Festa met with Nicnonas Ster-
FANELLLI a/k/a Nicky Sxrys and after Gerard
Charles Festa showed the house to Nicnotas Ster-
ANELLI a/k/a Nicky Skins, it was agreed that Nicu-
oLAS STEFANELLI a/k/a Nicky Skins, Netson Tost
AND Roserr Bisaccia a/k/a Casert would perpetrate
the entry and that they would divide the proceeds
with Gerard Charles Festa and JoHn Qvuarrvuccio
a/k/a Jonnny Reiser.

4. On or about the 27th day of August, 1972 Nicn-
OLAS STEFANELLI a/k/a Nicky Skins, Roserr Bisac-
crA a/k/a Casert, GERALD SperpuTo, Netson Tosi
AND Sam Corsaro a/k/a Lirrite Sam did break and
enter the premises of Dominick Bruno at 392 Ridge
Street, Newark, New Jersey and did steal and carry
away money, jewelry and other things of value
therefrom.

All said acts being contrary to the provisions of N.J.S.
2A :98-1 and N.J.S. 2A :98-2, against the peace of this State,
the government and dignity of the same.

25a
Appendix C
Seconp Count

And The Grand Jurors of the State of New Jersey, for
the County of Essex, upon their oath present that Nicx-
OLAS STEFANELLI a/k/a Nicky Skins, GERALD SrerpDvuTo, Ros-
ERT Bisaccia a/k/a Capert, Josep Cicata, NELSON Tost,
Sam Corsaro a/k/a Lirrte Sam anp Joun QUARTUCCIO
a/k/a JounNny Rewer on or about the 27th day of August,
1972 at the City of Newark in the County of Essex afore-
said and within the jurisdiction of this Court, did wilfully
enter the premises of Dominick Bruno with intent to steal
contrary to the provisions of N.J.S. 2A:94-1 and against
the peace of this State, the government and dignity of the
same..

Txirp Count

And The Grand Jurors of the State of New Jersey, for
the County of Essex, upon their oath present that Nicuo-
LAS STEFANELLI a/k/a Nicky Sxrys, Geratp SPERDUTO,
Rosert Bisaccra a/k/a Casert, Josepen Cicata, NELson
Tost, Sam Corsaro a/k/a Lirrte Sam AND Jonw QUARTUCCIO
a/k/a Jounny Rewer on or about the 27th day of August,
1972 at the City of Newark in the County of Essex afore-
said and within the jurisdiction of this Court, did steal, take
and carry away, money, jewelry and other items of value of
which exceeds $500.00 the property of Dominick Bruno
contrary to the provisions of N.J.S. 2A :119-2, and against
the peace of this State, the government and dignity of the
same.

JosePH P. Lorpr
County Prosecutor
By: Josep A. Fatcone

26a

APPENDIX D

Judgment of Conviction of Robert Bisaccia,
Dated June 3, 1975

Superior Court or New JErRsey
Kssex County Court

JUDGMENT SHEET
Form A

Tue State or New Jersey
VS.

Rosert Bisaccta
Defendant

q

Indictment No.: 75-74
Attorney: Daniel Isles
Prosecutor: Glenn Goldberg
Court Reporter: Rappaport

The defendant, being charged on 9-11-74 on Ind. No.
75-74 for the crime of Conspire, Enter Larceny and the
defendant having pleaded Not Guilty and thereafter, hay-
ing on 5-1-74 been tried with a jury and a verdict of
guilty having been rendered.

It is, therefore, on Jun 3 1975 ordered and adjudged
that the defendant be and is sentenced to:

27a
Appendix D

Ct 1 Not Less than 1 year nor more than 2 years at
N.J. State Prison. To pay a fine of $1000.00.

Ct 2 Not Less than 4 years nor more than 5 years at
N.J. State Prison. To pay a fine of $2000.00. Concurrent
with Sentence Imposed on Ct. #1.

Kintered by
Joun F, MoTrrnan

Ratpx L. Fusco
Judge Superior Court

Reasons ror SENTENCE IMPOSED

Retribution
Deterent
Rehabilitation
Judge Superior Court
Raupx L. Fusco

Ct 3 Not Less than 4 years nor more than 5 years at
N.J. State Prison. To pay a fine of $500.00

Consecutive to Sentence Imposed on Ct. 2. Restitution
in amount of $8000.00. Committed until fine & restitu-
tion paid.

Restitution to be paid in aggregate w/defendants Sper-
duto, Stefanelli & Corsaro.

28a

APPENDIX E

Opinion of the New Jersey Superior Court,
Appellate Division, Dated March 28, 1977

Superior Court or New JERSEY
APPELLATE DIVISION

A-3473-74
A-3488-74

» =
—

STATE OF NEW JERSEY,

Plaintiff-Respondent,
v.

NICHOLAS STEFANELLI, SAMUEL CORSARO and
ROBERT BISACCLA,

Defendants-Appellants.

Argued January 11, 1977—Decided March 28 1977

Before Judges Matthews, Seidman and Horn.

On appeal from the Superior Court, Law Division, Essex
County.

Mr. Thomas Ford, Designated Counsel, argued the cause
for appellants Stefanelli and Corsaro (Mr. Stanley
C. Van Ness Public Defender, attorney); Mr. Thomas
Ford, Retained Counsel, argued the cause for appellant

29a
Appendix E

Bisaccia (Mr. Frank H. Reimers, of counsel and on the
brief for all appellants).

Mr. Mare J. Friedman, Assistant Prosecutor, argued the
cause for respondent (Mr. Joseph P. Lordi, Essex Coun-
ty Prosecutor, attorney).

Per Curiam

Defendants were each found guilty after a two and one-
half week jury trial of three counts of an Essex County
Indictment which charged them each with conspiracy to
break and enter and conspiracy to commit larceny
(N.J.S.A. 24 :98-1); entering with intent to steal (N.J.S.A.
2A :94-1), and larceny of goods the value of which ex-
ceeded $500 (N.J.S.A. 2A:119-2). The trial judge sen-
tenced Bisaccia to an aggregate five to seven years, and
Corsaro and Stefanelli to an aggregate seven to nine years
on the three charges.

Defendants have filed an elaborate brief on appeal rais-
ing numerous arguments for reversal which we treat seria-
tim.

A brief statement of the facts is necessary for an under-
standing of the various arguments raised by defendants

on this appeal.

The evidence adduced by the State establish that one
Cicala, as the result of knowledge obtained by him, in-
formed one Festa that a house in North Newark owned
by the Brunos would probably be a good place to bur-
glarize because of the probable existence of items of
wealth therein. Cicala stated thet he knew Festa to be
a professional burglar, and it was his hope that if Festa
was successful in burglarizing the Bruno home, he would
receive a cut in any proceeds. Approximately two weeks

30a
Appendiz E

after speaking to Festa, Cicala was informed by Festa
that the job could not be s1ccessful because of the existence
of a burglar alarm in the house. That was the end of
Cicala’s activities with respect to any burglary, and he
never received any proceeds of the burglary that ail
mately ensued.

Festa testified as to his conversation with Cicala and
corroborated the fact that Cicala had nothing further to
do with the conspiracy or entry once he had informed him
of the existence of the burglar alarm. However, Festa,
after checking the house, contacted Stefanelli and one
Sperduto about the Bruno house. Subesquently, the State
contends, Corsaro, Bisaccia, Sperduto and Stefanelli, by-
passed the burglar alarm and entered the Bruno home and
stole various items, the value of which exceeded $500.
It was through the cooperation of Festa with the State
that the three defendants and Sperduto were apprehended.
As indicated, Festa testified at trial and was, for all in-
tents and purposes, the State’s “star” witness.

I

The Admission of the Testimony of Cicala with
Respect to the Conspiracy

Defendants first contend that the trial judge improperly
permitted the testimony of Cicala to be admitted against
them. The trial judge relied on Evid. R. 63(9) which
permits a statement to be admitted against a party if that
statement was made while the party and the declarant
were participating in a plan tc commit a crime and the
statement was made in furtherance of that plan, as the
basis for admission. The State denies that it used this

3la
Appendiz E

rule as the basis for admission. Rather, it contends that
the testimony of Cicala was admissible because he was a
coconspirator. We have some doubt as to both the rele-
vancy and the competency of the testimony of Cicala con-
sidering the proofs of the State as adduced.

Cicala’s conversation with Festa with respect to the
Bruno house and its contents took place during June of
1971. The conversation between Festa and him with re-
spect to the burglar alarm took place not more than two
weeks thereafter. It is undisputed that there were no con-
versations betweten Cicala and Festa, or Cicala and any
of the defendants between June 1971 and August 1972.
The indictment under which these defendants were charged
alleged that a conspiracy existed among the parties “be-
tween on or about the 15th day of July 1972 and on or
about the first day of September 1972.” Although the in-
dictment was later amended to have a commencement date
of the conspiracy in June 1971 (an amendment about
which we have grave doubt) the proofs adduced by the
State do not tie Cicala to the three defendants in any
way. For this reason without deciding the issue presented
to us, we observe that the use of Cicala’s testimony was
probably an example of prosecutorial “overkill”, and is

harmless error.

II

The Admission of Assistant Prosecutor Falcone,
Detectwe Donahue and F.B.I. Agent Wilson re-
garding other crimes of Festa.

As indicated, Festa became the principal witness for the
State. Festa had a long career of criminal activity both

32a
Appendia E

in this State and the State of Pennsylvania. He was also
involved with federal authorities. Under an arrangement
made with the federal authorities and the Essex County
Prosecutor’s office, Festa was to cooperate in solving nu-
merous crimes in return for which he was to reccive leni-
ent treatment with respect to sentencing. In addition, the
New Jersey authorities were to appear in Pennsylvania and
inform the sentencing court there of Festa’s cooperation
with authorities here in New Jersey. Anticipating an at-
tack on Festa’s credibility on cross-examination, the State
produced the Assistant Prosecutor, a detective and an
F.B.I. agent to describe the extent of Festa’s cooperation
with authorities and the promises that were made to him
for such cooperation.

Defendant’s first argument that it was improper for
the State to introduce evidence of Festa’s criminal activity
on direct examination is without merit. We do not read
Rule 20 as inhibiting such a procedure. Nor do we find
any limitation in this respect in the provisions of N.J.S.A.
2A :81-12. Moreover, we do not regard the testimony of
the three witnesses mentioned as an attempt to neutralize
the testimony of any witness, or as being supportive of
Festa’s credibility. It was obviously nothing more than an
attempt on the part of the prosecution to establish that an
agreement existed between the prosecutor’s office and Festa
whereby Festa would benefit if he told the truth and pro-
vided the prosecutor with information that would impli-
cate others.

Defendants’ second argument that this testimony went
to the reliability of Festa’s testimony is also without merit.
It was the cross-examination of the three witnesses men-
tioned in which defense counsel, over the objection of the
prosecutor indeed, elicited from the witnesses that they be-

33a
Appendix E

lieved the testimony that Festa hads given. Any error, if
it existed, was induced by defense counsel’s cross-examina-
tion and not by the State.

UI

The Admission into Evidence of Cicala’s Guilty
Plea to the Conspiracy Indictment

Prior to trial, Cicala pleaded guilty to conspiracy to
break and enter the home of Bruno, however, he refused
to plead guilty to the indictment in which he was charged
because the conspiracy alleged therein extended between
the 15th day of July 1972 to the 1st day of September 1972.
The trial judge agreed with Cicala and refused to let him
plead to that indictment as it stood because of the time
discrepancy. As a result, the date of the indictment was
amended by the trial judge at the request of the prosecutor
so that the conspiracy was alleged to have begun in June
1971. Cieala pleaded guilty to the first count of the indict-
ment as amended. In response to the plea bargain, the
second two counts with respect to Cicala were dismissed.
When Cicala took the stand, the trial judge permitted him
to testify that he had enterd a guilty plea to the charge of
conspiracy. Defense counsel objected to this testimony on
the ground that Cicala had not entered a guilty plea to
the first count of the unamended indictment which charged
his defendants with conspiracy. The trial judge over-
ruled the objection because he had amended the indict-

ment.
The State argues that permitting Cicala to testify that

he had entered a guilty plea to the conspiracy charge was
for the purpose of affecting the credibility of the witness

34a
Appendiz E

by showing his interest in the result of the case; and re-
gardless of the admissibility of the actual guilty plea, this
evidence was of little impact in light of the detailed testi-
mony of the witness with regard to his participation in the
crime. We believe this argument simply begs the issue.

The prosecutor’s argument is negated by the words of
the assistant prosecutor in referring to Cicala’s plea dur-
ing the summation:

** * [A] young man named Joseph Cicala pleaded
guitly to conspiring to break, enter and commit lar-
ceny inside the Bruno home. They [the defendants]
said it never happened, you see. Mr. Cicala pleaded
guilty to something that didn’t happen.

Ladies and gentlement, isn’t your intelligence be-
ing insulted by an argument like that? I mean,
aren’t these defendants talking down to you as if
you were a bunch of five year old children?

Defense counsel objected to these remarks; however, his
objection was predicated upon the fact that Cicala had
not entered a guilty plea to the original indictment but
the amended indictment.

It is fairly apparent that the testimony of Cicala with
respect to the guilty plea was used for the purpose of
impressing the jurors of the existence of the conspiracy.
After all, an individual would not plead guilty to a con-
spiracy that did not exist. We believe even the infer-
ence to be drawn from this testimony created prejudice
which had to affect the outcome of the trial. In addi-
tion, no limiting instruction was given by the trial judge
so that the jurors were permitted to use Cicala’s testi-
mony as they pleased.

35a
Appendix E

The prejudicial error inherent in the admission of such
testimony was referred to in United States v. Toner,
173 F.2d 140, 142 (3 Cir. 1949):

From the common sense point of view a plea
of guilty by an alleged fellow conspirator is highly
relevant upon the question of the guilt of another
alleged conspirator. If A’s admission that he con-
spired with B is believed, it is pretty hard to avoid
the conclusion that B must have conspired with A.
This is one of the cases, therefore, where evidence
logically probative is to be excluded because of some
countervailing policy. There are many such in-
stances in the law. See 4 Wigmore, Evidence §1171
et seq. (38d Ed. 1940).

The foundation of the countervailing policy is the
right of every defendant to stand or fall with the
proof of the charge made against him, not against
somebody else. Acquittal of an alleged fellow con-
spirator is not evidence for a man being tried
for conspiracy. So, likewise, conviction of an al-
leged fellow conspirator after a trial is not ad-
missible as against one now being charged. The
defendant had a right to have his guilt or innocence
determined by the evidence presented against him,
not by what has happened with regard to a eri-
minal prosecution against someone else. We think
that the charge given upon this point was con-
trary to that rule and inadvertently, of course, de-
prived the defendant of a very substantial protec-
tion to which he was entitled.

(173 F.2d at 142) (footnetes omitted)

>

36a
Appendix E

In addition, we note Cicala’s guilty plea was made to
an amended indictment which extended the period of the
alleged conspiracy. The grand jurors who considered the
evidence and ultimately handed up the indictment charg-
ing these three defendants ostensibly did not consider any
evidence with respect to proceedings before July 1972. —
The amendment here was made merely to accommodate
Cieala. Defendants were not charged by the grand jurors
with having conspired prior to the 1972 date.

IV
Miscellaneous Arguments for Reversal

We are satisfied from our review of the record that
the arguments of defendants raised with respect to (a)
the testimony of the assistant prosecutor regarding the
sentence to be received by Festa in Pennsylvania and the
prosecutor’s reference to it in summation; (b) the pro-
secutor’s comment that the testimony of F.B.I. Agent Wil-
son should be believed because of his official position;
(c) the testimony with respect to the alleged telephone
conversation between Festa’s daughter and one of the co-
defendants; (d) the variance between the amended and
unamended indictments and the proof adduced at trial;
(e) the alleged testimony of the assistant prosecutor that
Festa was in protective custody, and (f) that there was
cumulative error in all the foregoing requiring reversal,
to be without merit.

Because of the error found under Point III, above,
relating to the testimony of Cicala with respect to his
guilty plea_to the conspiracy charge, we find defendants

37a
Appendia E

to have been prejudiced to the extent that they were
denied a fair trial. Accordingly, the convictions are re-
versed and the cause remanded to the Essex County Court
for a new trial.

38a

APPENDIX F

Order Granting Petition for Certification,
Dated June 1, 1977

SupREME Court oF New JERSEY
C-743 SepremBer Term 1976

»
——_—-

Strate or New JERSEY,
Plaintiff-Petitioner,
vs.
NicHOLAS STEFANELLI, ef al.,

Defendants-Respondents.

-
a

To Appellate Division, Superior Court:

A petition for certification having been submitted to this
Court, and the Court having considered the same,

It is hereupon Orperep that the petition for certification
is granted solely as to the issue of the use of the testi-
mony by Cicala as to his plea of guilty and the prosecu-
tor’s comments thereon.

Wirness, the Honorable Worrall F. Mountain, Presid-
ing Justice, at Trenton, this lst day of June, 1977.

Fiorence R. Pesxor
Clerk
Filed

June 1 1977

Fiorence R. Peskor
Clerk

39a

APPENDIX G

Opinion of the New Jersey Supreme Court,
Dated January 10, 1979

Strate or New JERSEY,
Plaintiff-Appellant,

Vv.

NicHoLas STEFANELLI, SAMUEL CORSARO, and
Roserr Bisaccia,

Defendants-Respondents.

—+>

Argued April 25, 1978—Decided January 10, 1979.

Mr. Marc J. Friedman, Deputy Attorney General, argued
the cause for appellant (J/r. John J. Degnan, Attorney
General of New Jersey, attorney; Mr. Donald S. Coburn,
Kssex County Prosecutor, of counsel).

Mr. Thomas P. Ford, Jr. argued the cause for respond-
ents (Mr. Stanley C. Van Ness, Public Defender, attorney
for respondents Stefanelli and»Corsaro; Mr. Thomas P.
Ford, Jr., attorney for respondent Bisaccia).

The opinion of the court was delivered by

Hanpter, J. Defendants Nicholas Stefanelli, Gerald
Sperduto, Robert Bisaccia, Joseph Cicala, Nelson Tosi,
Sam Corsaro and John Quartuccio were indicted and
charged with conspiracy to break and enter and to com-

40a
Appendix G

mit larceny (N.J.S.A. 2A:98-1) as well as the substantive
offenses of entering with intent to steal (N.J.S.A. 2A :94-
1) and larceny of goods valued over $500 (N.J.S.A. 2A :119-
2). There followed an extended trial on these charges.
The cases against defendants Cicala, Tosi and Quartuccio
were dispesed of prior to the completion of the trial.
The remaining defendants were eventually convicted by
the jury and later sentenced. Appeals were taken by
Bisaccia, Corsaro and Stefanelli. The Appellate Divi-
sion, in a reported per curiam opinion, reversed these
convictions and remanded the matter for a new trial.
State v. Stefanellt, 153 N. J. Super. 452 (App. Div. 1977).
This Court granted certification limited to the “issue of
the use of the testimony of Cicala as to his plea of guilty
and the prosecutor’s comments thereon.” 75 N. J. 4 (1977).

I

The indictment charged in three counts that between
July 15, 1972 and September 1 1972, defendants con-
spired with Gerald Festa, an unindicted co-conspirator,
to break and enter the home of Dominick Bruno, to steal
money, goods and chattels and that on August 27, 1972,
defendants actually broke into Bruno’s home and stole
money and jewelry valued in excess of $500. The indict-
ment recited four overt acts commited in furtherance of
the conspiracy. Of special importance here is the first
overt act relating to defendant Joseph Cicala. This act,
according to the indictment, consisted of a conversation
between Cicala and Festa during which Cicala informed
Festa that money and jewelry were contained in the Bruno
home and the home was frequently unoccupied on week-
ends. The indictment did not specify the date of this
conversation and did not in any other way refer to Cicala.

4la
Appendix G

On the day of trial, Cicala appeared before the trial
judge and pled guilty to the conspiracy charge pursuant
to a plea bargain. In exchange for the guilty plea the
State agreed to recommend that the remaining counts of
the indictment be dismissed and that Cicala receive “con-
sideration” at the time of sentencing for his “cooperation”
with the State. Cicala admitted that he conspired with
Festa for the purposes of breaking and entering the Bruno
home with intent to steal as set forth in the conspiracy
charge and the first overt act; he denied any further in-
volvement with Festa or any of the other defendants.
He stated, however, that his converstions with Festa oc-
curred in June 1971, not in 1972 as charged in the indict-
ment. The trial judge, with the acquiescence of Cicala’s
attorney, stated that he was amending the conspiracy
count of the indictment to reflect the conspiracy starting
in June 1971. He then accepted Cicala’s plea of guilty.
No formal amendment order, however, was entered nor
was any written notation made upon the official indict-
ment to reflect the amendment authorized by the court.
It appears that the other defendants and their attorneys
were present in court during these proceedings.

The jury trial then commenced. Cicala wa's called as a
State’s witness. He revealed that he was employed as a
hairdresser at an establishment within walking distance of
the Bruno home and he had observed that one of his cus-
tomers, Mrs. Dominick Bruno, invariably wore expensive
jewelry. He also testified that he was aware that sub-
stantial amounts of cash were kept at the Bruno house and
that the Brunos were in the habit of vacationing at the
Jersey shore. Cicala knew that Festa was a burglar. He
stated that he spoke to Festa and suggested that “it might
be a good idea to rob the [Bruno] house,” and that in the

42a,
Appendia G

past he had given such information or “seores” to Festa;
Cicala hoped to receive a “cut” or a share of the proceeds
of any burglary of the Bruno home. That evening, acting
upon his conversation with Cicala, Festa visited the Bruno
home to “case the joint” with Quartuccio, an expert in burg-
lar alarms, who found a relatively sophisticated alarm sys-
tem and told Festa to forget about any break-in of the
Bruno home. Festa, in turn, told this to Cicala. Cicala had
no further direct or active involvement in the criminal en-
terprise after this point.

In July, approximately one month after these events
(but, in the year 1972, according to Festa’s testimony),
Stefanelli and Sperduto were approached by Festa as to
the feasibility of breaking into the Bruno home. Appar-
ently relying upon Cicala’s information, Festa told them
of the location of the cash and jewelry in the Bruno home
as well as the fact that the home was frequently vacant on
- weekends. Festa then inspected the Bruno home with
Stefanelli who indicated that the burglar alarm posed no
problem since Tosi, his brother-in-law, could “jump it”.
About two weeks later, in late July or early August, ac-
cording to Festa, Corsaro, Bisaccia and Sperduto visited
Festa and made additional inquiries concerning the feasi-
bility of a break-in of the Bruno home.

On August 20, 1972, Dominick Bruno and his family went
to San Francisco for a two-week vacation. At 8:30 a.m.
on August 27, 1972, the home was discovered to have been
ransacked; the police were notified and arrived at the
scene. Although there was no evidence of a forced entry,
a knife was stuck in the wall holding up the wiring to the
burglar alarm, presumably short-circuiting or “jumping”
the wires and deactivating the alarm system enabling the

43a
Appendix G

perpetrators to enter the house. Dominick Bruno was
contacted by phone that evening and apprised of the inci-
dent; he arrived the next day and inspected his home to
determine what, if any, items were missing. He claimed a
variety of his home furnishings as well as numerous re-
cently acquired goods had been stolen, and subsequently
filed an insurance claim of $14,543.90 for stolen and dam-
aged property. Ultimately he collected only $6,800.

The only testimony which directly linked defendants with
the actual break-in of the Bruno home came from Festa,
the State’s principal witness. In addition to his testimony
of his own initial conversation with Cicala and his follow-
ing discussions with the various defendants and explora-
tory visits to the Bruno home, Festa stated that he did not
learn of the actual break-in until approximately one week
after its occurrence. He had received a telephone call from
Stefanelli who, without mentioning the break-in, requested
that Festa meet with him. Moments before Festa was
about to leave his home to meet with Stefanelli, however,
he was visited by a detective of the Bandit Squad of the
Newark Police Department. When questioned by the de-
tective, Festa denied any participation in the break-in and
he was told that the thieves “got a couple of good pieces
of jewelry but missed the money.” Festa then met Stefan-
elli, in the presence of Bisaccia and Sperduto, and it was
admitted to Festa that they had committed the crime or,
in their argot, the Bruno “score”. They mentioned that
Tosi had disconnected the burglar alarm enabling them to
enter the Bruno home, and once inside the house they
searched unsuccessfully for cash and jewelry, generally
tearing the house apart in the process, and they had tele-
phoned Festa from the Bruno home but did not reach him.

44a
Appendix G

The genesis of the issue on this appeal occurred during
Cicala’s testimony when he related the circumstances sur-
rounding his guilty plea. Cicala, it is to be recalled, had
given a detailed account of his early though limited involve-
ment in the conspiracy. After Cicala had so testified, the
prosecutor asked him whether he had been arrested in this
matter. Defense counse: objected on general grounds, but
the court overruled the objection and the witness answered
in the affirmative. At this point the prosecutor began to
inquire into Cicala’s cooperation with the Essex County
Prosecutor’s Office when defense counsel interrupted the
questioning, and the following colloquy ensued:

Defense counsel: Is the purpose of the Prosecutor’s
question to bolster the credibility of his witness?
I believe he has testified as to what he knows re-
garding this particular incident. He has testified
as to what is relevant as far as this case is con-
cerned.

Now, what the Prosecutor is attempting to do
I think is bolster the credibility of his witness by
the form of questions as to what might have hap-
pened subsequent to this event as to conversations
he might have had.

Quite obviously, after whatever relationship he
had with this particular incident terminated by his
giving any statement to them—

Prosecutor: Not at all, your Honor, the purpose
of these questions is to advise the jury and the
Court—

Court: I am going to allow the question without
hearing your purpose.

-

45a
Appendix G

Cicala then stated that “recommendations would be made
to the sentencing judge as to my cooperation in this
ease.” He further testified that he ‘ad previously pled
guilty to the first count of the indictment. Defense coun-
sel thereupon objected to this testimony but solely on the
ground that Cicala had pleaded guilty to the indictment
as amended and not the original indictment. This ob-
jection was also overruled by the court for the reason
that he had “amended the indictment”,

Cicala’s testimony concerning his guilty plea was sub-
sequently commented upon by the prosecutor during sum-
mation. The prosecutor, in an apparent attempt to re-
fute the innuendo of defense counsel that the crime was
engineered by Bruno in order to defraud his insurance
company, stated:

Bruno burglarized his own home, it never happened,
and yet a young man named Joseph Cicala pleaded
guilty to conspiring to break, enter and commit
larceny inside the Bruno home. [Defendants] said
it never happened, you see. Mr. Cicala pleaded
guilty to something that didn’t happen. Ladies and
gentlemen, isn’t your intelligence being insulted by
an argument like this? I mean, aren’t these de-
fendants talking down to you as if you were a
bunch of five year old children? (Emphasis added).

Defense counsel objected to these comments, but was over-
ruled by the court. Defense counsel argued vigorously,
out of the presence of the jury, that the court had dis-
allowed any comment to the jury on the disposition of
the charges against Tosi (that being a directed judg-
ment of acquittal) and that by permitting the prosecutor
now to imply that “because Cicala pleaded guilty * * *

46a
Appendix G

this crime occurred and these defendants are guilty” was
patently unfair. The court overruled defense counsel’s
objection and no cautionary instruction was given the jury.
In the charge to the jury, the court, without referring
specifically to Cicala’s testimony concerning his guilty plea,
merely stated in general terms that evidence of the convic-
tions of Festa and Cicala had been introduced for the pur-
pose of affecting their credibility. (Festa had numerous
prior convictions as well as pending charges against him;
Cicala had also testified to a federal conviction in addition
to his guilty plea to the conspiracy under the indictment
being tried.) The case was submitted to the jury which
returned guilty verdicts against defendants on all counts.

II

Defendants contended before the Appellate Division that
Cicala’s factual testimony concerning his actual involve-
ment in the conspiracy had been improperly admitted. The
court observed that since Cicala’s two conversations with
Festa occurred during June 1971 and there were no conver-
sations between Cicala and Festa nor any of the defendants
thereafter, “the proofs adduced by the State [did] not tie
Cicala to the three defendants in any way”, 153 N. J. Super.
at 456, and thus any error in the admission of this testimony
was harmless. The court also expressed “grave doubt” as to
the amendment of the indictment, which moved the com-
mencement of the conspiracy back to June 1971 from July
15, 1972 as originally charged. Jd. The Appellate Division,
however, did not actually rule upon either of these con-
tentions.

There should be dispelled at the outset any outstanding
doubt as to whether Cicala’s testimony of his actual partici-

47a
Appendix G

pation in a criminal conspiracy with Festa to burglarize
the Bruno home was relevant to the issue of the guilt of
the other indicted defendants. The testimony of Cicala,
as well as Festa, disclosed that Cicala conceived the erim-
inal scheme to burglarize the Bruno home; his conversa-
tions with Festa evidenced an unlawful agreement to ac-
complish this. It was obviously their understanding that
Festa, a professional burglar, would attempt to follow
up on this lead and, if he were successful, Cicala would
share in the fruits of the burglary.

This testimony spelled out a criminal conspiracy, the
essence cf which is the unlawful agreement. It is not
essential that the conspiracy be successful or that the
agreement be fully or substantially carried out; if there be
an agreement to accomplish a criminal end, it is sufficient
that some step, no matter how small or innocuous, be
taken to further the conspiracy. See State v. Carbone, 10
N. J. 329, 336-338 (1952); also Siate v. Dennis, 43 N. J.
418, 423-424 (1964); State v. Lennon, 3 N. J. 337, 341-342
(1949). The relevance of this evidence to the issue of the
guilt of the other indicted defendants is patent. These
defendants, according to the testimony, joined the con-
spiratorial plan which had been conceived by Cicala and
launched by Festa. The ignorance of defendants as ty
how the conspiracy was hatched and of Cicala’s initiating
role or expectations in no way alters their own criminal
responsibility. State y. Carbone, swpra; State vy. Graziani,
60 N. J. Super. 1, 18 (App. Div. 1959), aff’d o.b. 31 N. J.
538, cert. den. 363 U. S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d
1524 (1960). Nor does the fact that Cieala had no per-
sonal knowledge of the outcome of his plan or of the iden.
tities of the persons who later exeeuted the plot lessen
defendants’ actual part in the burglary scheme, Cf. U. 8.
v. Cohen. 197 F. 2d 26, 29 (3 Cir. 1952).

48a,
Appendix G

With respect to the concern of the Appellate Divi-
sion over the change of -dates in the indictment to accom-
modate the receipt of Cicala’s guilty plea, the indictment
was clearly amendable to show the earlier date. Our rules
permit amendments “to correct * * * the description of the
offense intended to be charged” so long as this does not
result in charging a “different offense” and “the defend-
ant will not be prejudiced thereby in his defense on the
merits.” R. 3:7-4. The change of date to accord with
Cicala’s version of the time did not result in the presenta-
tion of a “different offense.” Where, as here, time is not
crucial either to the defense to or prosecutiongof a charged
offense, an amendment changing or correcting a date is not
objectionable. State v. Witte, 13 N. J. 598, 604-607 (1953) ;
State v. Kuske, 109 N. J. Super. 575, 583-586 (App. Div.
1970) ; compare State v. Sing Lee, 94 N. J. L. 266 (EB. & A.
1920) and State v. Paulks, 97 N. J. L. 408 (Sup. Ct. 1922).
Generally, “time is not of the essence of the offense of con-
spiracy”, State v. Unsworth, 85 N. J. L. 237, 241 (E. & A.
1913), and it was not so in this case. Moreover, defend-
ants were neither prejudiced by nor unprepared for any
variance between dates. See State v. Holder, 137 N. J.
Super. 300, 305 (App. Div. 1975). They were present in
court when Cicala entered his gui!.y plea and could antici-
pate completely his later testimony at trial to the same
effect. Furthermore, they did not seek any clarification of
the yudge’s amendment of the indictment nor did they re-
quest a postponement of trial as a condition to the amend-
ment, R. 3:7-4, and in fact, defense counsel fully exploited
the asserted disparity between the dates on Cicala’s cross-
examination.

In short, the Appellate Division expressed needless mis-
givings as to the relevance of Cicala’s testimony concern-

49a
Appendix G

ing his actual participation in the conspiracy, as well as to
the actual or assumed amendment of the indictment to
charge the conspiracy as having begun in June 1971. The
testimony was clearly material to the issue of the guilt of
defendants and it did not, either in terms of its general
relevance or in relation to the conspiracy charge of the in-
dictment, catch defendants by surprise or prejudice them in
their defense.

III

The Appellate Division’s opinion focused upon Cicala’s
guilty plea testimony. The court found “[i]t is fairly ap-
parent that the testimony of Cicala with respect to the
guilty plea was used for the purpose of impressing the
jurors of the existence of the conspiracy” and, upon the au-
thority of United States v. Toner, 173 F. 2d 140 (3 Cir.
1949), it held that the plea of guilty by Cicala as an al-
leged co-conspirator should have been excluded and that its
admission constituted reversible error. 153 N. J. Super. at
459.

The. traditional view is that the guilty plea of a co-
defendant is inadmissible in the separate trial of another de-
fendant as substantive evidence of the latter’s complicity.
See, ¢.g., United States v. Harrell, 436 F. 2d 606, 614-616
(5 Cir. 1970) ; United States v. Toner, supra, at 142 ; State
v. Felton, 131 N. J. Super. 344 (App. Div. 1974) certif. den.
68.N. J. 140 (1975); Annot., “Admissibility of Statements
of Coconspirators Made After Termination of Conspiracy
and Outside Accused’s Presence”, 4 A. L. R. 3d 671, 709-710
(1965). The policy underlying this rule is that once a de-
fendant is on trial, he “is entitled to have the question of
his guilt determined upon the evidencé against him, not on

50a
Appendix G

whether a Government witness or co-defendant has plead
[sic] guilty to the same charge.” Babb v. United States, 218
F. 2d 538, 542 (5 Cir. 1955); also United States v. Hall,
178 F. 2d 853 (2 Cir. 1950); accord, State v. Atkinson, 25
N. C. App. 575, 214 8S. E. 2d 270 (Ct. App. 1975). As
stated in United States v. Toner, supra at 142:

From the common sense point of view a plea of
guilty by an alleged fellow conspirator is highly
relevant upon the question of the guilt of another
alleged conspirator. If A’s admission that he con-
spired with B is believed, it is pretty hard to avoid
the conclusion that B must have conspired with A.
This is one of the cases, therefore, where evidence
logically probative is to be excluded because of some
countervailing policy. There are many such in-
stances in the law. See 4 Wigmore, Evidence § 1171
et seq (3d ed. 1940).

The foundation of the countervailing policy is the
right of every defendant to stand or fall with the
proof of the charge made against him, not against
somebody else. Acquittal of an alleged fellow con-
spirator is not evidence for a man being tried for
conspiracy. So, likewise, conviction of an alleged
fellow conspirator after a trial is not admissible as
against one now being charged. The defendant had
a right to have his guilt or innocence determined by
the evidence presented against him, not by what has
happened with regard to a criminal prosecution
against someone else, * * * (Jd.) (Footnotes omitted)

The State attempts to minimize in this case the signi-
ficance of ‘ihe substantive use of a co-conspirator’s guilty
plea. It urges that an important reason for the general

dla
Appendix G

rule of exclusion is the right of a defendant under the
Sixth Amendment to confront his accusers; consequently
where, as here, the co-defendant is a witness at the trial
and available for cross-examination, the reasons for exclu-
sion of the guilty plea are undercut substantially.

It is true, of course, that the Sixth Amendment right
of confrontation under the circumstances of a given
case may constitute a compelling reason for excluding a
co-defendant’s guilty plea. See, e.g., State v. Atkinson,
supra, 214 8. E. 2d at 272 (evidence that a co-defendant,
who is not a witness, has pled guilty to the charge against
defendant deprives defendant of his constitutional rights
of confrontation and cross-examination). A similar argu-
ment for exclusion might also be predicated upon the hear-
say rule. See Dutton v. Evans, 400 U.S. 74, 86-90, 91 S. Ct.
210, 218-220, 27 L. Ed. 2d 218, 225-227 (1970); McK ethan
v. U. S., —— U. 8S. —, 99 S. Ct. 333, 58 L. Ed. 2d 333
(1978) (denial of petitions for writs of certiorari, Stewart,
J. dissenting). Thus some courts have excluded prior con-
fessions of guilt as substantive evidence of the guilt of
other defendants because such confessions constitute extra-
judicial statements, whether or not the declarant is testify-
ing at trial; e.g., United States v. Hicks, 420 F. 2d 814 (5
Cir. 1970) ; cf. Sothern v. Van Dyke, 114 N. J. L. 1 (EB. &
A. 1934); Gray v. State, 221 Md. 286, 157 A. 2d 261, 263-
264 (Ct. App. 1960); State v. Cole, 252 Or. 146, 448 P. 2d
523, 528 (Sup. Ct. 1958). But other courts have concluded
that where a declarant is available as a witness at trial,
a prior extra-judicial statement loses its character as
hearsay, Northwestern Mutual Life Insurance Co. v. Lin-
ard, 498 F, 2d 556, 560 (2 Cir. 1974) ; Vincent v. Thompson,
50 A. D. 2d 211, 377 N. Y. S. 2d 118, 130-131 (App. Div.
1975) ; cf. Cain v. George, 411 F. 2d 572, 573 (5 Cir. 1969),

52a
Appendix G

especially so when the extra-judicial statement is offered
through the testimony of the declarant as a witness. See
Ikerd v. Lapworth, 435 F. 2d 197, 206 (7 Cir. 1970); Ad-
visory Committee Note, Fed. R. Evid. 801(d); IIIA Wig-
more, Evidence § 1018 (Chadbourn Rev. 1974); MeCor-
mick, Evidence § 251. Under this thesis, it might be rea-
soned, the admission of the prior confession through the
live trial testimony of the declarant as a witness would
not violate the hearsay rule.

These approaches are not controlling in resolving the
problem raised in this appeal. The reasonableness of
using a guilty plea against co-defendants as substantive
evidence of their guilt cannot be made to turn upon whether
such use would otherwise satisfy the Sixth Amendment or
the hearsay rule. These safeguards secure certain im-
peratives vital to a criminal defendant on trial, particularly
the need to be able to confront adverse witnesses and to
assure that evidence bearing upon guilt is reliable and
trustworthy. They do not address the cognate, elementary
concern that all evidence directed to the issue of guilt be
probative, material and relevant.

It is with reference to its probative quality that the
guilty plea testimony of Cicala must be considered. It may
be that as a matter of common experience one might believe
that because one co-conspirator has pleaded guilty to a joint
crime, others similarly charged are also guilty. United
States v. Toner, supra; cf. State v. Felton, supra. It is not
enough, however, that a guilty plea simply as a matter of
logic be relevant or probative of the guilt of others. United
States v. Toner, supra at 142. There may be, and often
are, many other undisclosed or collateral factors actuating
a guilty plea in addition to guilt in fact. Bordenkircher v.
Hayes, 434 U. 8. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ;

53a
Appendix G

Blackledge v. Allison, 431 U. 8. 63, 72, 97 S. Ct. 1621, 1628,
52 L. Kd. 2d 136, 145 (1977); Brady v. United States, 397
U.S, 742, 756-757, 90 S. Ct. 1463, 1473, 25 L. Ed.2d 747, 761
(1970). It is for that reason that a guilty plea of one per-
son as such cannot be ccnsidered satisfactory or worthy
evidence of the guilt of others even though similarly cir-
cumstanced and is properly excludable under the axiom
that a defendant on trial is entitled “to have his guilt or
innocence determined by the evidence presented against
him, not by what has happened with regard to a criminal
prosecution against someone else.” United States v. Toner,
supra at 142; Babb v. United States, supra at 542. Hence
we conclude, as did the court below, that Cicala’s guilty
plea was inadmissible as substantive evidence of the guilt
of the defendants.

The State’s strongest argument is that Cicala’s plea was
properly admissible for purposes of affecting credibility
and that, under all of the circumstances, it did not have a
sufficiently prejudicial effect as substantive evidence to re-
quire reversal of the convictions. The States relies upon
both N.J.S.A. 2A :81-12 and Evid, R. 20 to justify the ad-
missibility of Cicala’s guilty plea. N.J.S.A. 2A :81-12 pro-
vides that: “[f]Jor the purpose of affecting the credibility
of any witness, his interest in the result of the action, pro-
ceeding or matter or his conviction of any crime may be
shown * * *.” Evid. R. 20 permits introduction of “evi-
dence relevant upon the issue of credibility.”

Cicala’s guilty plea was definitely admissible to affect his
credibility as a witness. Defendants assert, however, that
the State was limited to questioning Cicala with respect to
whether “he, ever pleaded guilty to a crime, what type of
crime it was, and what sentence he received”; beyond this,

d4a
Appendix G

it is argued, any questioning as to the details of the crime
was improper. Clearly this is not so. Cicala’s guilty plea
was presented to the jury as part of a plea bargain and the
jury was advised that it involved a promise of considera-
tion or a suggestion of leniency at the time of sentencing
for his “eooperation” in the prosecution, Thus, the testi-
mony of the guilty plea and the surrounding circumstances
constituted evidence bearing directly upon Cicala’s “inter-
est in the result of the action”, N.J.S.A. 2A:81-12, and was
highly “relevant upon the issue of [his] credibility.” Tvid.
R. 20. See State v. Hodgson, 44 N. J. 151, 163 (1965);
United States v. Bryza, 522 F. 2d 414, 425 (7 Cir. 1975),
cert. den. 426 U. S. 912, 96 S. Ct. 2237, 48 L. Ed. 2d 837
(1976); United States v. King, 505 F. 2d 602, 607 (5 Cir.
1974); State v. Cole, supra, 448 P. 2d at 528; People v.
Crawl, 47 Mich. App. 749, 209 N. W. 2d 809 (Ct. App. 1973),
rev'd on other grounds, 401 Mich, 1, 257 N. W. 2d 86 (Sup.
Ct. 1977) ; cf. State v. Sands, 76 N. J. 127 (1978).

It must nevertheless be acknowledged that the admissi-
bility of the guilty plea on the issue of credibility does not
fully meet the defendants’ contention that Cicala’s plea was
improperly admitted as substantive evidence and that its
use as substantive evidence in the context of the entire trial
was so prejudicial as to constitute reversible error.

The prosecutor, it is to be recalled, was cut off by the
court and not given the opportunity to specify the purpose
of the guilty plea testimony in the face of defense counsel’s
objections. Notwithstanding that defense objections to the
guilty plea testimony were not clearly articulated, the
court was mistaken in not clarifying the purpose of this
line of testimony. But more important, the court itself
was obligated independently under these circumstances to
give the jury a proper cautionary instruction as to the

55a
Appendix G

limited use of this testimony for credibility purposes, even
in the absence of a specification of reasons by the prosecu-
tor or a request therefor by defendants. Evid. R. 6; State
v. Costa, 11 N. J. 239, 249 (1953); State v. Felton, supra,
131 N. J. Super. at 349-350; also United States v. Bryza,
supra, 522 F. 2d at 425; I’reije v. United States, 386 F. 2d
408, 411 (1 Cir. 1967).

Moreover, when a guilty plea of a co-defendant is
brought to a jury’s attention without any guiding in-
structions as to its use in their deliberations, the potential
for misuse is manifest. United States v. Harrell, supra,
436 F. 2d at 614; State v. Underwood, 248 Iowa 443, 447-
448, 80 N. W. 2d 730, 734 (Sup. Ct. 1957). This risk of
misuse was aggravated here by the prosecutor’s remarks
during summation. The prosecutor, in effect, told the jury
that it was an insult to their collective intelligence to be-
lieve that there would have been a guilty plea by Cicala if
there had been no conspiracy. Furthermore, the trial court
did not at that juncture or later in its general charge to the
Jury correct the prosecutor’s misleading remark. The Ap-
pellate Division consequently determined, and we agree,
that under all the circumstances no restriction was imposed
upon the jury as to the limited admissibility of the evidence
of Cicala’s plea and that this constituted error. 153 N. J.
Super. at 459.

The question becomes whether, in the context of the trial,
the error was sufficiently harmful to justify a reversal of
the convictions, that is, whether it was clearly capable of
producing an unjust result. R. 2:10-2; State v. DiPaglia,
64 N. J. 288 (1974); see also State v. Macon, 57 N. J. 325
(1971).

56a
Appendix G

The absence of a limiting instruction to the jury re-
stricting the use of a guilty plea to the issue of credibility
is usually an important factor in determining whether the
admission of the plea constitutes harmless error. United
States v. Toner, supra. Compare United States v. Harrell,
supra, 436 F. 2d at 614-616 (reversible error where jury
was apprised of witness’ guilty plea without proper
limiting instructions) and F'reije v. United States, supra,
386 F. 2d at 411 (admission of evidence of guilty plea of
co-defendant presupposes that a cautionary charge will be
given), with United States v. King, supra, 505 F. 2d at 607-
608 (failure to give a cautionary instruction is but one of
many factors to be considered in assessing whether evi-
dence of co-defendant’s guilty plea prejudiced accused).
State v. Felton, swpra, found such error to be reversible,
but in that case evidence of the guilty plea came before the
jury with respect to a pleading co-defendant who did not
in fact testify at the trial. To the same effectIs Trussell
v. United States, 278 F. 2d 478, 480 (6 Cir. 1960). In such
a case it is not possible to develop through the testimony
of the pleading defendant the facts which underlay the
guilty plea, to expose the circumstances under which the
guilty plea was given or to attack credibility through cross-
examination.

Here, Cicala’s complicity in the crime charged against
defendants was established independently by his detailed
testimony concerning his involvement in the crime; the
jury was specifically made aware that the guilty plea
was based only upon the facts to which he testified, namely,
his criminal conversations with Festa and nothing more.
Moreover, he was thoroughly cross-examined and his cre-
dibility severely tested. In this context, his guilty plea
adds little, if any, extra evidential weight to the proofs

ova
Appendix G

establishing the existence of a conspiracy as between him-
self and Festa. See Baker v. United States, 393 F. 2d
604, 614 (9 Cir. 1968). Cf. State v. Riddall, 251 Or.
506, 446 P. 2d 517, 518 (Sup. Ct. 1968). It adds nothing
of substantive consequence beyond the “evidential deserip-
tion” of the underlying crime furnished by the witness
in his testimony to the jury. State v. Hodgson, supra
44 N. J. at 164. Against this factual testimony, the ad-
mission of the guilty plea without a limiting instruction
was truly harmless. See State v. Cole, supra, 448 P. 2d
at 528 (harmless error when co-conspirators’ guilt es-
tablished by their own testimony which also implicated
defendant); also United States v. Alfano, 152 F. 2d 395,
398 (3 Cir. 1945) (concurring opinion); United States
v. Corso, 100 F. 2d 604, 605-606 (7 Cir. 1938).

We are satisfied that the error did not have the clear
capacity to produce an unjust result and that it had a
minimal effect on the outcome of the trial. Accordingly,
we reverse and reinstate the convictions.

Scurerser, J., concurring. I concur in the reversal of
the judgment of the Appellate Division and the rein-
statement of the convictions. However, I believe that
the prosecutor’s comments regarding Cicala’s plea of guilty
to the conspiracy charge when read in the context of
his summation may well have been proper.

A criminal conviction generally may be introduced to
affect the credibility of a witness. State v. Sands, 76
N. J. 127 (1978). Our eases also firmly establish that
the State had a right on direct examination to disclose
Cicala’s guilty plea to the jury. In State v. Holley, 34
N. J. 9, cert. den. 368 U.S. 854, 82 S. Ct. 89, 7 L. Ed.
2d 51 (1961), Justice Francis wrote:

58a
Appendix G

The law is settled in this jurisdiction that either
party on producing a person as a witness may
inquire on direct examination if he has been con-
victed of crime, and show the crime even if an
affirmative answer is given. [34 N. J. at 13]

See also State v. Costa, 11 N. J. 239, 249 (1953); State v.
Fox, 12 N. J. Super. 182 (App. Div. 1951). There are vari-
ous reasons for the rule, but they are all grounded in con-
siderations of credibility. In Holley and Foz, it was noted
that since the State, like any othcr party, impliedly repre-
sents that a witness it presents is worthy of some credit,
it is proper to aid the jury’s evaluation of his testimony
by bringing out the fect that he has been convicted of a
crime. An additional rationale advanced in Costa is that
such evidence protects the State from any inference that
it was withholding information bearing upon the witness’
credibility.

In the usual ease, the conviction is unrelated to the facts
at issue and is used only to impeach credibility. But a con-
viction relevant to a witness’ credibility may also be intro-
duced to support that credibility. This evidentiary prin-
ciple is embodied in Evid. R. 20 which states that

for the purpose of * * * supporting the credibility
of a witness, any party including the party calling
him may examine him and introduce extrinsic evi-
dence relevant upon the issue of credibility * * *.
No evidence to support the credibility of a witness
shall be admitted except to meet a charge of recent
fabrication of testimony.

See Fed. R. Evid. 801(d)(1); Uniform R. Evid. 801(d) (1);
4 Wigmore, Evidence § 1129 (1972); cf. State v. Neiman,

o9a
Appendix G

123 N. J. L. 341 (Sup. Ct. 1939), aff'd o.b. 124 N. J. L.
062 (HE. & A. 1940). Compare the “fresh complaint” rule. |
See State v. Hintenberger, 41 N. J. Super. 597 (App. Div.
1956). It is possible then for a guilty plea to have a dual
impact, cutting in opposite directions, both related to credi-
bility—in one respect supporting veracity and in the other,
impeaching it.

Thus, Cicala’s plea of guilty was admissible to corrob-
orate and support his testimony. Since the theory of the
defense outlined in the opening was that the victim Bruno
staged the burglary to collect insurance and Cicala’s eredi-
bility was sharply challenged by cross-examination,' it
would seem that the charge of recent fabrication was sat-
isfied. Accordingly, there was compliance with Evid. R. 20.

Arguably one could interpret the prosecutor’s comments
to the jury to suggest that the guilty plea be considered
as substantive evidence. However, after reading the entire
summation I am satisfied that the prosecutor was really
attempting to stress, and the jury was only lead to believe,
that the guilty plea corroborated and supported Cicala’s
testimonial recital of the facts. Even if*this were not so,
I agree with the majority that any such error was harm-
less.

Furthermore, I do not agree with the majority that a
guilty plea of a witness who is on the stand and subject
to cross-examination cannot be admitted into evidence de-

Though the guilty plea was offered before cross-examination,
its admissibility on one basis would not have precluded its use on
another at the time of summation when its permissible scope had
been broadened by the defendant’s attack on the witness’ credi-
bility.

60a
Appendix G

spite its materiality and relevance. The majority appears
to believe that the plea’s probative value, and therefore its
admissibility, depends upon the wiiness’ motivation in en-
tering that plea. However, irrespective of the factors which
actuated the plea, our courts do not accept a guilty plea
unless there is a factual basis for it. R. 3:9-2. Under our
practice the trial court must be satisfied from the lips of the
defendant that he committed the acts which constituted the
crime. Compare State v. Reali, 26 N. J. 222 (1958), with
North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27
L. Ed. 2d 162 (1970). See also “Administrative Memo Re:
Criminal Pleas,” 94 N.J.L.J. 1 (1971). Accordingly, I
cannot agree with the majority’s conclusion that because a
guilty plea may have been motivated by factors other than
guilt, it cannot “for that reason” be considered satisfactory
or worthy evidence of guilt of others. 78 N. J. at 433.

Other than as stated herein, I concur in the opinion of
the majority and join in the judgment of reversal and rein- »
statement of the convictions.

PasHMAN, J., dissenting. I disagree with the manner in
which the majority has disposed of this ease. Although I
am in accord that the trial court erred in allowing Cicala to
testify as to his plea of guilty, I cannot accept the major-
ity’s conclusion that this error was harmless beyond a rea-
sonable doubt. I also cannot subscribe to the majority’s
assertion that evidence of a co-conspirator’s guilty plea is
always admissible insofar as it bears upon the co-conspira-
tor’s credibility as a witness.

I

The overwhelming majority of the courts which have
addressed the issue have held that a co-conspirator’s guilty

6la

Appendix G

plea is inadmissible as substantive evidence of the existence
of a conspiracy in which a defendant has participated. See,
e. g., United States v. Ha: rell, 436 F. 2d 606 (5th Cir. 1970) ;
United States v. Toner, 173 F. 2d 140 (3rd Cir. 1949) ; State
v. Felton, 131 N. J. Super. 344 (App. Div. 1974), certif.
den. 68 N. J. 140 (1975). The reasons underlying this ex-
clusionary rule have been ably summed up by the United
States Court of Appeals for the Third Cireuit:

From the common sense point of view a plea of
guilty by an alleged fellow conspirator is highly rele-
vant upon the question of the guilt of another alleged
conspirator. If A’s admission that he conspired with
B is believed, it is pretty hard to avoid the conclu-
sion that B must have conspired with A. This is one
of the cases, therefore, where evidence logically pro-
bative is to be excluded because of some countervail-
ing policy. There are many such instances in the law.

Acquittal of an alleged felow conspirator is not
evidence for a man being tried for conspiracy. So,
likewise, conviction of an alleged fellow conspirator
after a trial is not admissible as against one now be-
ing charged. The defendant ha[s] a right to have
his guilt or innocence determined by the evidence
presented against him, not by what has happened
with regard to a criminal prosecution against some-
one else. [U. S. v. Toner, supra, 173 F. 2d at 142
(citations omitted, footnotes omitted) (emphasis
supplied) ]

See Babb v. United States, 218 F. 2d 538, 542 (5th Cir.
1955) ; United States v. Hall, 178 F. 2d 853 (2d Cir. 1950).
These same considerations support the conclusion that such

62a

Appendix G

guilty plea evidence is inadmissible whether or not the co-
conspirator is present in court and subject to cross-exami-
nation. In either situation, the defendant being tried is
entitled to a verdict based solely upon proofs relating to
whether he himself committed an offense, and not upon
evidence bearing on the manner in which an alleged co-con-
spirator’s case has been settled.

As the above cited passage from Toner emphasizes, evi-
dence of a co-conspirator’s guilty plea is not excluded be-
cause it lacks relevance to the issues being adjudicated in
the defendant’s trial. Reasonable minds could logically
infer from such a plea that a conspiracy did indeed exist.
Rather, such evidence is inadmissible on grounds of funda-
mental fairness. It is patently unfair to subject a defend-
ant to criminal sanctions merely because his alleged co-con-
spirator has not elected to stand trial. In effect, the guilty
plea evidence cannot be introduced because its relevance
is far outweighed by its potential prejudicial impact upon
the jurors’ deliberations.

Although acknowledging as much, see ante at 430-433,
the majority nevertheless concludes that guilty plea evi-
dence can be introduced by the prosecutor over the defend-
ant’s objections if utilized solely “to affect [the co-con-
spirator’s] credibility as a witness.” See ante at 433. This
conclusion-negates the policies underlying the general ex-
clusion of guilty plea evidence. Moreover, it is premised
upon a wholly unrealistic conception of the impact which
this evidence will have upon jurors’ deliberations.

N.J.S.A. 2A :81-12 does, at first glance, seem to author-
ize the prosecutor’s introduction of guilty plea evidence
for purposes of credibility. That statute provides:

63a
Appendix G

For the purpose of affecting the credibility of any
witness, his interest in the result of the action * * *
or his conviction of any crime may be shown by ex-
amination or otherwise * * *,

The precise parameters of this statute cannot be appreci-
ated, however, without a consideration of Evid. R. 4, which
states in part that

The judge may in his discretion exclude evidence
if he finds that its probative value is substantially
outweighed by .the risk that its admission will...
(b) create substantial danger of undue prejudice
or of confusing the issues or of misleading the jury.

In State v. Sands, 76 N. J. 127 (1978), decided less than
six months ago, Justice Schreiber speaking for this Court
squarely held that N.J.S.A. 2A :81-12 “do[es] not support
the conclusion that every criminal conviction is automati-
cally admissible ... to affect the credibility of a criminal
defendant.” Id. at 138 (emphasis supplied). Although all
prior convictions of a witness may in some way reflect upon
his credibility, we acknowledge that with respect to certain
convictions “admission will create undue prejudice.” Id. at
147. Hence, we ruled that a trial judge must consider all
the circumstances of a case prior to allowing any such
conviction to be introduced into evidence.

The considerations which led to our holding in Sands
apply with equal force to the situation here under review.
The admission of a co-conspirator’s guilty plea may in-
deed bear somewhat upon his credibility as a witness.
However, its probative value is far outweighed by its preju-
dicial impact upon a defendant’s case. Regardless of the
presence of limiting instructions, it cannot reasonably be

64a
Appendix G

expected that jurors will appreciate the legal niceties out-
lined by the judge and utilize such evidence only for ecredi-
bility purposes. Rather, they are likely to consider this
plea as substantive evidence of the existence of a con-
spiracy in which the defendant participated.

Were “relevance” the only concern in this situation,
guilty plea evidence would have to be deemed admissible as
substantive evidence that a defendant committed an of-
fense. As noted earlier, reasonable minds could logically
infer from such a plea that a conspiracy did indeed exist.
It is absurd to take account of the prejudicial impact in-
herent in such evidence when the guilty plea is relevant
to the existence of a conspiracy but not when such a plea
bears upon a witness’ credibility.

I would therefore hold that unless the defendant other-
wise agrees, a trial court may never allow the introduction
of evidence dealing with a co-conspirator’s guilty plea to
crimes for which a defendant is presently being tried. The
probative value of such evidence is outweighed by its preju-

dicial impact. Hence, it should be excluded pursuant to
Evid. R. 4.

A defendant may, however, wish to introduce such evi-
dence in order to call into question the veracity of a prose-
cution witness. In such a case, it would be unfair to pro-
hibit the prosecutor on direct examination from first elicit-
ing such evidence in order to negate its potential adverse
impact upon the State’s case. Prior to the calling of a
convicted co-conspirator to the stand, a trial judge should
therefore ask defense counsel whether he intends to ques-
tion the witness as to his plea of guilty. If he answers in
the affirmative, then the prosecutor can introduce the plea
into evidence on direct examination. Otherwise, he cannot.

65a
Appendix G
I

In the present case, Cicala’s guilty plea was clearly in-
troduced in order to demonstrate that a conspiracy actually
existed. In summing up his case before the jury, the
prosecutor remarked:

** * [A] young man named Joseph Cicala pleaded
guilty to conspiracies to break, enter and commit
larceny inside the Bruno home. [Defendants] said
it never happened, you see. Mr. Cicala pleaded
guilty to something that didn’t happen. Ladies and
gentlemen, isn’t your intelligence being insulted by
an argument like that? I mean, aren’t these defend-

_ ants talking down to you as if you were a bunch
of five year old children?

Thus, even accepting the majority’s formulation of the ex-
clusionary rule, the introduction of such evidence consti-
tuted error. The majority, however, labels this error
“harmless”. A review of the record below demonstrates
the unsoundness of such a conclusion.

At no point did the trial judge instruct the jury that
Cicala’s guilty plea could be considered solely for the pur-
pose of credibility. Several courts have held that such a
limiting instruction is a prerequisite to a finding of
harmless error when a co-conspirator’s guilty plea is intro-
duced into evidence. See, e.g., United States v. Harrell,
436 F. 2d 606, 614-16 (5th Cir. 1970); Freije v. United
States, 386 F. 2d 408, 411 (1st Cir. 1967). Indeed, the
courts of this State have emphasized the need for a jury
instruction in this context. See, e.g., State v. Costa, 11
N. J. 239, 249 (1953) ; State v. Felton, 131 N. J. Super. 344,
348-350 (App. Div. 1974), certif. den. 68 N. J. 140 (1975).

66a
Appendix G

Moreover, the evidence of guilt adduced below was not
80 overwhelming as to compel a finding that the trial
court’s error was harmless beyond a reasonable doubt. The
State’s case was primarily circumstantial in nature. Aside
from Cicala’s testimony, the only direct evidence implicat-
ing defendants in the conspiracy was the testimony of co-
conspirator Gerald Festa. Given Festa’s extensive crimi-
nal record and his interest in the outcome of the case, the
jurors might very well have doubted his veracity. Thus,
there clearly exists a reasonable possibility that testimony
regarding Cicala’s guilty plea “led the jury to a result it
otherwise might not have reached.” State v. Macon, 57
N. J. 325, 336 (1971).

The majority asserts that due to Cicala’s testimony con-
cerning his dealings with Festa, “his guilty plea add[ed]
little, if any, extra evidential weight to the proofs estab-
lishing the existence of a conspiracy as between himself
and Festa.” See ante at 436. The soundness of this conclu-
sion is belied by the prosecutor’s decision to stress that
very guilty plea during his summation. It seems to me, as
it must have to the prosecutor, that a jury is likely to be
influenced to a much greater extent by the presence of a
conviction than by the mere narration of events culminat-
ing in a conviction.

Accordingly, I would affirm the judgment of the Appel-
late Division and remand this case for a new trial.

ScureiBer, J., concurring in the result.

For reversal and reinstatement—Chief Justice Hucues,
Justices SuLLivan, CLirrorp, SCHREIBER and HanpierR and
Judge Conrorp—6.

For affirmance—Justice PasumMan—l.

67a

APPENDIX H

Opinion of the United States District Court for the
District of New Jersey, Dated May 3, 1979

UNITED STATES DISTRICT COURT
District or New Jrersey
Civil #79-301

»™
7

In re: ROBERT BISACCIA,
Petitioner,

v.

THE ATTORNEY GENERAL OF NEW JERSEY,
Respondent.

*

Lacey, D.J.

This is a habeas corpus action commenced pursuant tu
28 U.S.C. §§ 2241, 2254 on January 24, 1979. Petitioner
Robert Bisaccia is presently confined at the New Jersey
State Prison, serving a sentence of five to seven years
on a 1974 state court conviction of conspiracy, entering
with intent to steal, and larceny of goods over the value
of $500 following a jury trial.

The petitioner appealed his conviction to the Appellate
Division of the Superior Court of New Jersey. The peti-
tioner’s appeal was consolidated with that of co-defendants
Nicholas Stefanelli and Samuel Corsaro, On March 28,

68a
Appendia H

1977 the Appellate Division reversed the three convic-
tions and remanded the matter for a new trial; the deci-
sion was based on the introduction of testimony of a co-
defendant that he had pled guilty to the conspiracy charge.
State v. Stefanelli, 153 N.J. Super. 452 (App. Div. 1977).
The New Jersey Supreme Court granted certification on
the use of the co-conspirator’s guilty plea as testimony
and subsequent comments by the prosecutor on the guilty
plea, State v. Stefanelli, 75 N.J. 4 (1977). On January
10, 1979 the Supreme Court reversed the decision of the
Appellate Division and reinstated the convictions. State
v. Stefanelli, 78 N. J. 418 (1979). Although the Supreme
Court found error in the trial court’s use of the guilty
plea, the court held that “the error did not have the clear
capacity to produce an unjust result and that it had a
minimal effect on the outcome of the trial.” Id. at 437.

Petitioner contends that he is being held in custody by
the State of New Jersey in violation of the United States
Constitution. He argues that the New Jersey Supreme
Court applied an incorrect test regarding the error of the
trial court in allowing the testimony about the co-con-
spirator’s guilty plea. The petitioner contends that the
proper test is found in Chapman v. California, 386 U.S.
18, 24 (1966). In that case the Court determined that
the test to use for error resulting in a denial of constitu-
tional rights is “that before a federal constitutional error
can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.”
Id. at 24. The respondent, John J. Degnan, Attorney
General of New Jersey, takes the position that (1) peti-
tioner has failed to exhaust his State remedies regarding
the due process claim; (2) there was no denial of due
process in the admission of a co-conspirator’s guilty plea;

69a
Appendix H

and (3) the New Jersey Supreme Court applied the proper
standard of review because the error was not of consti-
tutional dimension.

Exhaustion of Petitioner’s State Remedies

A state prisoner seeking a writ of habeas corpus in
federal court must first exhaust available state judicial
remedies, 28 U.S.C. § 2254(b). See, e.g., Picard v. Con-
nor, 404 U.S. 270, 275 (1971); La parte Royall, 117 U.S.
241 (1886). The Supreme Court has determined that it
is in the interest of federal-state comity “to give the State
an initial ‘opportunity to pass upon and correct? alleged
violations of its prisoners’ federal rights.” Wilwordina
v. Swenson, 404 U.S. 249, 250 (1971); Fay v. Noia, 372
U.S. 391, 488 (1963).

The doctrine of exhaustion requires that “the federal
claim must be fairly presented to the state courts.” Picard
v. Connor, supra, at 275. More specifically, this demands
that the state prisoner seeking a writ of habeas corpus
in federal court first “present the state courts with the
same claim he urges upon the federal courts.” Jd. at 276.
In Picard v. Connor, supra, the Court found the exhaustion
requirement was not fulfilled by the state prisoner peti-
tioning for a writ of habeas corpus since the state court
did not have “a fair opportunity to consider the equal
protection claim and to correct that asserted constitutional
defect,” id., since the prisoner did not assert an equal pro-
tection claim until his petition in the United States Su-
preme Court. Id. at 276-77; see Zicarelli v. Gray, 543 F.2d
466, 472-75 (8d Cir. 1976).

In the instant case, the petitioner claims that he was
denied a “fair trial” on the basis of the admission into

70a
Appendix H

evidence of a co-defendant’s guilty plea and a prosecu-
tor’s subsequent comments relating to that guilty plea. The
question of exhaustion arises because, according to Picard
v. Connor, supra, the petitioner must raise the precise claim
in the state courts before consideration may be given in
federal court. In this court the petitioner claims that he
was denied due process under the fourteenth amendment
to the United States Constitution because the guilty plea
was submitted to the jury as substantive evidence of peti-
tioner’s guilt without limiting instructions to the jury. A
problem exists in petitioner’s claim; while his petition
alleges violations of the Constitution, he failed to allege
specifically in any state court proceeding that he was de-
nied a fair trial in violation of the federal Constitution.
Indeed, the only “constitutional” reference the petitioner
made in the state courts was that “fa]n accused is not
entitled to a trial perfectly free from all error but he is
entitled as a constitutional right to a fair trial and it is
respectfully urged that the manner in which the court be-
low conducted this hearing did not begin to render the
defendants a fair trial.” This statement, made in peti-
tioner’s brief to the Appellate Division, referred to an
allegation of cumulative error, which included not only
the admission of the guilty plea, but also admitting hearsay
evidence and violating sixth amendment confrontation
rights. In contrast, when petitioner claimed that admis-
sion of the guilty plea was error, he failed in his briefs to
the Appellate Division and to the New Jersey Supreme
Court to allege it in any way violated any constitutional
rights. See Brief of Defendants-Appellants to Superior
Court of New Jersey, Appellate Division at 37. No spe-
cific constitutional reference was made to the use of the
guilty plea. Reliance was placed by the petitioner upon

7la
Appendix H

the third circuit decision of United States v. Toner, 173
F.2d 140 (3rd Cir. 1949), in which a similar use of a guilty
plea of a co-conspirator was found to deprive the petitioner
of a fair trial. No mention was made, however, of a vio-
lation of the Constitution. This court has held that, to
satisfy exhaustion, the Constitution must be “specifically
invo[ked].” United States ex rel. Arthur Lee Suggs v.
Hilton, Civil No. 77-2048 at 2 (unpublished opinion, May
24,1978). The reason for such a rule is that

[a] state court conviction can be overturned by a
state appellate court on the basis of state common
law, state statutory law, and the state constituion,
as well as on the basis of the United States Constitu-
tion. Consequently, in the absence of a specific in-
vocation of the United States Constitution, the state
courts were entitled to assume that ... grounds for
reversal urged by the petitioner were based upon
state law rather than federal law.

Id. Consequently, the substance of the federal constitu-
tional claims presented to this court was not “fairly pre-
sented” to the Appellate Division or to the New Jersey
Supreme Court under Picard v. Connor, supra, and United
States ex rel. Arthur Lee Suggs v. Hilton, supra. There-
fore, the exhaustion requirement has not been satisfied,
and petitioner’s claim for relief by means of a writ of ha-
beas corpus must be denied.

Admission of the Guilty Plea of a Co-conspirator

Assuming arguendo that the petitioner has exhausted
his state remedies, the court must then consider the merits
of the petitioner’s argument.

72a
Appendia H

It is well settled that a state prisoner petitioning for a
writ of habeas corpus “is entitled to relief only upon prov-
ing that his detention violates the fundamental liberties
of the person, safeguarded against state action by the fed-
eral Constitution.” Townsend v. Sain, 372 U.S. 293 (1962).
Therefore, in order to grant the writ, the federal Consti-
tution must be violated. The third cireuit in United States
v. Toner, supra, considered an appeal by a defendant in a
war frauds case where the defendant argued on appeal that
the trial court erred by pointing to the guilty plea of a
co-conspirator. Id. at 142. On appeal, the court found that
such a charge “deprived the defendant of a very substan-
tial protection to which he was entitled.” Jd. The court rea-
soned that the defendant has a right to be judged on the
evidence presented against him, and not that presented
against another. Jd. The appeals court, therefore, reversed.
More recently, this circuit has held that guilty pleas are not
admissible to demonstrate the guilt of defendants yet on
trial. However, unless undue emphasis is placed upon
such evidence, the admission of such evidence is not re-
versible error, provided that cautionary instructions are
given. United States v. Gullo, 502 F.2d 759, 761 (3d Cir.
1974); United States v. Newman, 490 F.2d 139, 143 (3d
Cir. 1974); United States v. Restaino, 369 F.2d 544, 545
(3d Cir. 1966). Courts focus, however, on the evidentiary
value of admission of a co-conspirator’s guilty plea and
not on the allegation of deprivation of due process. The
fifth cireuit in United States v. Harrell, 436 F.2d 606 (5th
Cir. 1970), reasoned that “the evidentiary purpose ordi-
narily to be served by proof of a co-defendant’s plea of
guilty is so shadowy, so insubstantial that it would be the
better practice in run-of-the-mill cases to exclude such
proof altogether.” Jd. at 617. On the basis of a failure

73a
Appendix H

to demonstrate a constitutional violation by the trial court,
the petitioner should be denied a writ of habeas corpus.

It is therefore unnecessary to reach the petitioner’s claim
that the New Jersey Supreme Court’s use of the “clear
error” test prescribed in State v. Macon, 57 N.J. 325 (1971),
rather than the test prescribed in Chapman vy, California,
386 U.S. 18 (1966), was error.

Freperick B. Lacey
United States District Judge

Dated: May 3, 1979

74a
Appendix H
UNITED STATES DISTRICT COURT

District or New JERSEY
Civil No. 79-301

—+>

In re:

Rosert Bisaccia,
Petitioner,

Vv.

Tue Arrorney GENERAL or New Jersey,

Respondent.

-

ORDER

The court having read the exhibits listed below*, and
having fouud (1) that the petitioner has failed to exhaust
his state remedies and (2) that he has failed to assert a vio-
lation of the Constitution of the United States;

* R-1 Brief on Behalf of the State of New Jersey before the Ap-
pellate Division.

R-2 Supplemental Brief and Appendix on Behalf of the State of
New Jersey before the Supreme Court of New Jersey.

R-3 Brief and Appendix on Behalf of Defendants-Appellants be-
fore the Appellate Division.

R-4 Brief on Behalf of Defendants-Respondents before the Su-
preme Court of New Jersey.

75a

Appendia H

It Is HEREBY ORDERED that the petition is dismissed, with-
out costs.

There is no probable cause for appeal.

F'reperick B. Lacey
United States District Judge

Dated: May =, 1979

T6a

APPENDIX I

Order Dismissing Petition for Writ of Habeas Corpus,
Dated February 6, 1980

UNITED STATES DISTRICT COURT
District or New JERSEY
Civil 79-301

»
a

Rosert Bisacctia,
—vs.—

THe AtrTrorNey GENERAL oF New JERSEY,

»™
ae

The court having considered the submissions of the par-
ties and having determined that the petitioner has failed
to exhaust his available state remedies and furthermore,
that his claim is without merit;

It Is HEREBY ORDERED that the petition for writ of habeas

corpus is dismissed in accordance with an opinion filed May
3, 1979.

Freverick B. Lackey

U.S.D.J.
Date: February 6, 1980

77a

APPENDIX J

Order Denying Petition for Rehearing En Banc,
Dated July 10, 1980

UNITED STATES COURT OF APPEALS
For tue Turrp Crrcurr
No. 79-2040

i.
—

Bisaccta, Rosert,
Appellant

VS.

—_
Tue ATToRNEY GENERAL OF THE State or New Jersey

»-
a

Sur Pettrion ror REHEARING

Present: Serrz, Chief Judge, Aupisert, Apams, GiBBoNs,
Rosenn, Hunter, Weis, Garrn, HiccinsorHaM,
Stoviter, Circuit Judges, and Simmons, District

Judge.*

The petition for rehearing filed by The Attorney General
of the State of New Jersey in the above entitled case hav-
ing been submitted to the judges who participated in the

* Honorable Paul A. Simmons, United States District Judge
for the Western District of Pennsylvania, sitting by designation.

78a

Appendix J

decision of this court and to all the other available circuit
judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in regu-
lar active service not having voted for rehearing by the
court in bane, the petition for rehearing is denied.

By the Court,

A. Lzon Hicernsornam, Jr.
Judge

Dated: July 10, 1980

79a

APPENDIX K

Testimony of Joseph Cicala on April 18, 1975,
in Pertinent Part

Q. * * * [D]id there ever come a time when you
decided that you would tell what happened to mem-
bers—a member of the Essex County Prosecutor’s
staff?*

A. Yes.

Q. Do you recall approximately when it was that
you decided what you would tell what you knew
about this case to the Essex County Prosecutor’s
Office ?

A. Yes, it was approximately September 12 of
1974.

Q. September 12 of 1974?

A. Right,

* * *

Q. Would you tell the Court and jury what prom-
ises were made to you?

A. The promises were that recommendations
woula be made to drop the second and third count
of this indictment and the recommendations would
be made to the sentenciag judge at the time of
my sentencing as to my cooperation in this ease.

Q. So you understood at the time that you were
or would be charged in a three count indictment.
Is that correct?

A. That is right.

Q. And, do you know what those counts of the
indictment charge you with?

* Direct examination by Assistant Prosecutor Goldberg.

80a

Appendia K

A. Yes.

Q. What are they?

A. Conspiracy, entering with intent to rob, and
the other one escapes me. I don’t know the other
one.

Q. In any event, did there come a time when
you said that you were going to plead guilty, guilty
to the first count of that indictment conspiracy?

A. Yes. Yes.

Q. And the recommendation or the promise made
to you was that the Prosecutor’s office would rec-
ommend that the other two counts be dismissed?

A. That is correct.

Q. Did anyone promise you or tell you that the
judge would give you a certain specific sentence
because of any cooperation?

A. No.

Q. Did the Prosecutor or any Assistant Prose-
cutor or any detective or investigator tell you that
they would recommend to the judge the specific sen-
tence that they think you should he?

A. No.

Q.: Mr. Cicala, do you know any of the people sit-
ting at either of these two tables indicating the de-
fense tables?

A. No. No.

Q. Not knowing them do you have any personal
antagonism toward any of them?

A. No.

Q. Do you have any personal knowledge whether

or not or how they might be involved this ease?
A. No.

Q. Of your own knowledge.

8la
Appendix K

A. No. No.

Q. Did you in fact plead guilty to the first count
of this indictment?

A. Yes, I did.

Q. When was that?

Mr. Ford:* I am going to object.

Mr. Isles:** I object.

Mr. Ford.: I am going to have to object, your
Honor, because it is my opinion that he did not
plead guilty to the first count of this indictment.

The Court: I will allow the question. Your ob-
jection is overruled.

Q. Was that, Mr. Cicala—

Mr. Ford: I believe, your Honor—

The Court: Your objection is overruled. I
know. I amended the indictment and this is the
indictment to which he pleaded guilty. Your ob-
jection is overruled.

A. Monday of this week.

Q. Sir, I show you Indictment 75-74 and ask you
to look carefully at this indictment and I am refer-
ring you specifically to the line that begin between
on or about. Do you see that?***

* Counsel for co-defendant Sperduto.
** Counsel for respondent.

*** Cross-examination by Mr. Ford, counsel for Sperduto.

82a

Appendia K

A. Yes.

Q. You didn’t plead to that; did you?

A. No.

Q. As a matter of fact you pleaded in this court-
room; did you not?

A. Yes, I did.

Q. And, Judge Fusco would not take your plea
to the indictment as it reads here; would he?

A. No.

Q. Why wouldn’t he take your plea to that indict-
ment? Did he indicate that to you?

A. There was a time discrepancy.

Q. What was the date, sir, on which you say you
had a conversation with Mr. Festa?

A. June of 71.

* * o

Q. There is absolutely no question in your mind
whatsoever; is there, sir, that you spoke to Mr.
Festa about this Bruno house in June of 1971.

A. That was the first talk of it yes.

Q. And the second talk of it was approximately
when?

A. Approximately a couple of weeks later.

Q. Between June or July of ’71 and August of
1972 did you ever have any conversations with any
of these defendants?

A. No.

Q. Did you ever have any meeting with any of
these defendants?

A. No.

Q. Your own observations from your own knowl-
edge—do you know of any meetings or anything

83a

Appendia K

else in which they were involved in this period of
time?

A. With myself?

Q. Yes.

Q. No.

* * *

Q. When you entered this plea you entered it be-
fore Judge Fusco. Is that correct?

A. That is right.

Q. Didn’t he question you at the time that you
entered the plea?

A. Yes, he did.

Q. And, at that time did you indicate to him that
your conspiracy involving the Bruno house was just
with Gerard Festa?

A. Yes.

Q. Did you make any statement at the time you
entered the plea to Indictment 75-74 as to how many
you conspired with?

A. Yes, I did.

Q. Who was that?

A. Gerard Festa.

* * *
Mr. Ford: I have no further questions.
Mr. Checki:* No questions.
Mr. Isles: No questions.

* _ *

Mr. Grossman:** I have no questions.
Mr. O’Brien:*** No questions of this witness.

* Counsel for co-defendant Stefanelli.

** Counsel for co-defendant Tosi.

*** Counsel for co-defendant Corsaro.

84a

Appendia K

The Court: I thank you, Prosecutor, anything
else?

Mr. Goldberg: No, your Honor.

The Court: Thank you. You may step down,

Mr. Cicala.

[3T129-1 to 10;

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0589%3A1. Public record. Not legal advice.