Petition — Morrone v. United States

REC’ VFD

NOV 13 1981 ”.81 5874

Ors. iA

SUPRE:

OURT OF THE UNITED STATES

OCTOBER TERM, 1981

MODERWELL L. KESTER,

Petitioner

-VS-

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE THIRD CIRCUIT

FRANK |. MARCONE

216 West Front Street

P.O. Box 604

Media, Pennsylvania 19063

215-566-3723

Attorney for Petitioner

QUESTIONS PRESENTED

1. Whether the Petitioner was deprived

of his Fifth Amendment right when the trial

court permitted a statement made without bene-

fit of constitutional warnings to be admitted

as a “confession”.

2. Whether Petitioner was deprived of

due process when the trial court, after the

jury had indicated deadiock, charged the jury

to consider the cost of retrial rather than

the evidence.

3. Whether the trial court erred in per-

mitting the government agents to testify

regarding an interview described as a "confes-

sion" after they had destroyed their original

notes.

4. Whether the trial court erred in per-

mitting an in court identification based upon

an impermissibly suggestive photographic dis-

play.

5. Whether the trial court deprived the

Petitioner of due process after the key wit-

ness recanted his testimony and admitted per-

jury.

6. Whether the trial court erred in

charging the jury the co-defendants’ testimony

should be viewed with caution.

PARTIES TO THE PROCEEDINGS

Aside from the captioned parties, the co-

defendants, Michael Morrone and Ronald Turchi,

have filed a Joint Petition for Writ of Cer-

tiorari. F. Emmett Fitzpatrick, Esquire, 2800

Two Girard Plaza, Philadelphia, Pennsylvania

19102, represents Mr. Morrone and Joel Harvey

Slomsky, Esquire, 2400 Two Girard Plaza,

Philadelphia, Pennsylvania 19102, represents

Mr. Turchi.

ii

TABLE OF CONTENTS

Questions Presented

Parties to the Proceeding

Table of Authorities

Opinions Below

Statement of Jurisdiction

Constitutional Provision Involved

Statement of Case

Reasons for Allowance of Writ of

Certiorari

a. The petitioner was deprived

of his right provided by the

Fifth Amendment of the United

States Constitution, whereby

a statement made while he

believed himself to be in

custody was taken without

“Miranda” warnings and then

admitted in evidence.

b. Whether the petitioner was

deprived of due process when

the trial court after the

jury had indicated deadlock,

charged the jury to consider

the cost of retrial rather

than the evidence.

c. Whether the trial court erred

in permitting the government

agents to testify regarding

the interview described as a

confession after they had

destroyed their original

notes.

10

20

24

d. Whether the trial court erred

in permitting an in-court

identification based upon an

impermissibly suggestive

photographic display. 28

e. Whether the trial court |

deprived the petitioner of

due process after the key

witness recanted his testi-

mony and admitted perjury. 31

9. Conclusion : 34

10. Appendices:

Appendix "A" - Judgment Order of the

United States Court of

Appeals for the Third

District: NO. 80-2760

Appendix "B" - Opinion of the United

States District Court

for the Eastern Dis-

trict of Pennsylvania

TABLE OF AUTHORITIES

CASES:

Brady v. Maryland, 373 U.S. 3,

3 5.Ct. T19Z, 10 L.Ed. 215

(1963).

Bram v. United States, 168 U.S.

7).

Com. v. Sholder, 201 Pa. Super.

> 2d 632 (1963).

Fisher v. Scafati, 439 F2 307

(Ist Cir.), cert. denied

403 U.S. 939, 91 S.Ct.

2256, 29 L.Ed2 719 (1971).

Freye v. United States, 408 F2

I00 (Ist Cir.), cert.

denied 396 U.S. 859, 90

§.Ct. 129, 24 L.Ed2 111

(1969).

Loliver v. yet 469 F.Supp.

Miranda v. Arizona, 384 U.S.

Z30, 10 L.Ed2 694, 86

§.Ct. 1602.

Oregon v. Mathiason, 97 S.Ct.

’ ’ -Ed2 714

(1977).

Orozco v. Texas, 394 U.S. 324,

272 L.Ed2 oil, 89'S.Ct.

1095 (1969).

Simons v. United States, 309

U.S. 304 (1900).

United States v. Burley, 400

iii

13

31, 32-33

18

18

18

12, 13, 14,

16, 19

14-15, 17

16, 17, 19

29-30

22

CASES: Page

United States v. Harrison, 173

-o. App. D.C. » 524 F2

42: (1975). 25-26, 28

United States v. Neiderberger,

580 F2 63 (1978). 6.2.

United States v. Vella, 562 F2

OTHER AUTHORITIES:

Jenk's Act 25

iv

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MODERWELL L. KESTER,

Petitioner

-vVs-

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

OP INIONS BELOW

The Judgment Orders of the United States

Court of Appeals for the Third Circuit below

are not yet reported. Copies of the Judgment

Orders are attached as Appendix "A" and Appen-

dix "B". The Opinion of the United States

District Court for the Eastern District of

Pennsylvania is reported at 502 F. Supp 983

and is attached as Appendix "C".

(1)

STATEMENT OF JURISDICTION

The Judgment Orders of the United States

Court of Appeals for the Third Circuit below

were filed on September 15, 1981 (Appendix “A”

and Appendix "B"). The jurisdiction of this

Court is invoked under 28 U.S.C. Section 1254

(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution

of the United States provides in pertinent

part:

"No person...shall be compelled in

any criminal case to be a witness

against himself nor be deprived of

life, liberty or property without

due process of law."

The Sixth Amendment to the Constitution

of the United States provides in pertinent

part:

"In all criminal prosecutions, the

accused shall enjoy the right toa

-+-impartial jury."

(2)

STATEMENT OF THE CASE

This Petition for Writ of Certiorari to

Third Circuit. Court of Appeals challenges the

conviction of the petitioner in a criminal

prosecution in the United States District

Court for the Eastern District of Pennsylvania.

The petitioner, Moderwell L. Kester, and

co-defendants were charged with Mail Fraud

resulting from an arson. The convictions were

based upon violations of 18 U.S.C. Section

1341 and resulted from an alleged scheme to

defraud an insurance carrier by collecting

funds for fire damage to a building located

at 1150 East Orthodox Street, Philadelphia,

Pennsylvania.

The petitioner received a custodial sen-

tence of six years incarceration, five years

of probation, a fine of Six Thousand Dollars

($6,000.00) and restitution of Nineteen Thou-

sand Nine Hundred Eighty-six and 43/100 Dollars

($19,986.43) at six percent interest.

After post-trial motions were denied,

(3)

the conviction was affirmed by the Third Cir-

cuit Court of Appeals delow.

The major evidence produced by the govern-

ment came from the witness Richard Coppola,

an admitted arsonist who participated in the

indicted offenses. His testimony resulted

from a detailed plea bargain with the govern-

ment which included a plea of guilty to mail

fraud charges. Mr. Coppola's testimony was

critical for without it the government had no

case and the District Court so instructed the

jury.

On May 5, 1977, an old warehouse located

at 1150 East Orthodox Street, Philadelphia,

Pennsylvania was set afire by arsonists.

Sometime thereafter agents of the Alcohol,

Tobacco and Firearms Division of the Justice

Department obtained information Richard Cop-

pola had set the fire and was burned at the

site.

The property had been owned by the peti-

tioner, Mr. Kester, an elderly businessman,

(4)

for approximately eighteen (18) years. On

April 3, 1977, the petitioner had entered into

an agreement to sell the building to a Norman

Miller for Sixty-five Thousand Dollars

($65,000.00).

The agreement contained an amendment,

inserted by Miller, that a fire would void

the sale at the buyer's option. That amend-

ment was stricken by the petitioner's attorney.

After the fire, the property was repaired

at a loss to the petitioner, improved and con-

veyed to Miller.

On December 13, 1977, two agents of the

Alcohol, Tobacco and Firearms went to the

petitioner's business office where he was

served with a subpoena to appear before the

grand jury. He was also interviewed without

benefit of "Miranda" warnings.

The agents subsequently reported the

conversation contained an admission. The

petitioner denied making the statement as

described.

(5)

On October 18, 1978, the Special Prosecu-

tor assigned to the Eastern District of Penn-

sylvania procured an indictment charging the

petitioner and Coppola with crimes including

Mail Fraud. That indictment was dismissed soon

thereafter upon the government's motion.

On October 30, 1978, the government sub-

poenaed the petitioner's financial records and,

on March 5, 1979, the petitioner voluntarily

testified before the grand jury denying any

knowledge of an arson conspiracy.

On March 22, 1979, the petitioner was

arrested and notified ss thets indictments and

the co-defendants were made part of the alleged

conspiracy. :

That indictment alleged the co-defendants

and others were arsonists for hire who had

burned various buildings, among which was that

owned by the petitioner.

On July 13, 1979, after the pre-trial

motions were disposed of, a trial commenced

before The Honorable J]. William Ditter, Jr.,

(6)

Judge of the Eastern District of Pennsylvania. —

The testimony consisted of the alleged

inculpatory statement and the testimony of

Coppola, who stated he had once seen the peti-

tioner prior to the fire and that he had paid

money to hire the arsonists.

A search of the petitioner's financial

records disclosed no source of such funds.

The petitioner objected to the introduc-

tion of the inculpatory statement asserting

the statements were not prefaced by the neces-

sary warnings and, further, that the agents had

destroyed their original notes of the interview,

thereby depriving the petitioner of possible

exculpating or “Brady” evidence.

The agents had asserted the petitioner

said he had paid money to someone he had met in

a bar. The petitioner testified he had been

frightened when questioned and thought he was

being arrested. Both he and the agents testi-

fied he had said: “if you want me to say that,

I'll say it if it helps me." He then

(7)

determined he should speak to his attorney.

He gubcequent ly denied any knowledge of

the crimes.

The co-defendant Turchi, testifying in his

own behalf, admitted committing the arson but

denied it had been ordered by the petitioner.

His testimony, if believed, would have excul-

pated the petitioner.

The jury, after extensive deliberation,

returned to report themselves deadlocked.

Thereupon, the trial judge charged them to con-

sider the expense of retrial as well as the

evidence in the case.

After extensive deliberations, the jury

returned with verdicts of guilty.

The petitioner asserts his innocent, that

he had sold the property and could not benefit

from the crime, that he was frightened and

believed himself to be "in custody" when ques-

tioned and that he was promised “help with the

court" if he cooperated and jail if he did not.

He was not told any statements would be used

(8)

against him and he said < the agents wanted

him to say he was involved he would say so if

they would help him. He thereupon realized

what he was saying and decided he should speak

to an attorney.

At trial, the agents’ original notes of

the interview were not produced and, in accor-

dance with the law in the Third Circuit, the

petitioner asked for a dismissal. The request

was denied.

Further, the witness Coppola testified he

had seen the petitioner's picture in a clearly

suggestive photo display and he was thereafter

able to identify the petitioner. |

Also, the charge to the jury put the peti-

tioner, who testified in his own behalf, at an

unfair disadvantage leading the jury to believe

the burden had shifted onto the defense.

Finally, the petitioner believes the sup-

plemental charge directed the jury to decide

Be Interestingly, Witness Coppola recanted

after the trial and testified in detail to the

instructions given him by the agents whereby he

was enabled to give an in-court identification

of the petitioner.

(9)

based not upon evidence but upon financial -con-

cern and, further, the post-trial recanting by

the critical witness required a new trial.

REASONS FOR ALLOWANCE

OF THE WRIT OF CERTIORARI

I. The petitioner was deprived of his right

provided in the Fifth Amendment of the

United States Constitution, whereby a state-

ment made while he believed himself to be in

custody was taken without “Miranda” warnings

and then admitted in evidence.

The statement at issue was the one made

by the petitioner on December 13, 1977.

It appears the government agents had

information regarding the arsonists. That

information had been obtained through the

“lady friend” of Richard Coppola.

The agents went to the basement office of

the petitioner. It was late in the afternoon

and the petitioner had fallen asleep after

having consumed a substantial amount of alco-

hol. He was awakened and told he was being

“subpoenaed” to appear before the grand jury.

He was shown a subpoena and then told he was a

(10)

suspect.

The agents, when called to testify,

admitted they were hoping the petitioner, once

confronted, would make a “complete confession".

They told the petitioner he would be arrested

but that they wanted his cooperation and testi-

mony before he appeared in court.

The agents made it clear to the petitioner

that it would be to his advantage to make an

inculpating statement and they would make his

cooperation known to the judge.

The agents admitted they did not tell the

petitioner anything he said would be used

against him. They further admitted they told

him they wanted to know who the arson broker:

was, how he met him, how the money changed

hands and how the petitioner dealt with the

broker.

The agents further admitted the petitioner

asked what they would want his cooperation to

be, what the cooperation would mean to him and

how he best could help himself. He told the

(11)

agents he did not want to go to jail. The

agents admitted they told the petitioner they

could link him to the arsonist and that the

petitioner was noticably nervous.

The petitioner testified he was sixty-

three (63) years of age, had never had so much

as a traffic ticket and had no knowledge of the

law or legal proceedings. He stated he believed

he was under arrest and that he was going to

be taken to jail unless he gave the agents the

information they wanted. He stated after some

hesitancy he told them if they wanted himto

say he met someone in a bar and gave that per-

son money. He would say it.

The petitioner then, apparently, thought

better of such a statement and told the agents

he felt he should speak to his attorney before

saying anything further.

The petitioner asserts this statement was

taken in violation of the principal enunciated

by this court in the case of Miranda v. Arizona,

38 U.S. 436, 16 L.Ed2 694, 86 S.Ct. 1602.

(12)

The government argued successfully that

the facts of the case carried the statement

outside the guarantees therein given because

the petitioner was not in custody when the

statement was given.

The lower court adopted that position.

The petitioner asserts that to be in error

and points to the law as stated by this court

for precedence.

The Miranda decision (expen) actually had

its roots in the case of Bram v. United States,

168 U.S. 532 (1897) wherein the Court stated:

"A confession obtained by compulsion

must be excluded, whatever may have

been the character of the compulsion

and whether the compulsion was applied

in a judicial proceeding or otherwise."

(emphasis supplied)

Miranda (supra) expanded that guarantee

and the opinion is rich with references to the

safeguard necessary to prevent overzealous

police from obtaining information by even

subtle coercion or threats. The opinion

recites and condemns excerpts from police

manuals which instructed police how to apply

(13)

pressures designed to render the interrogated

person isolated and vulnerable to coercion or

threats.

The decision stated: “any custodial

interrogation must be prefaced by prewarnings.”"

The definition of custodial in Miranda

(supra) Decision was:

“we mean questioning initiated

by law enforcement officers after a

person has been taken into custody or

otherwise deprived of his freedom of

action in any significant way."

The government and the lower court referred

to this court's decision in Oregon v. Mathiason,

97 S.Ct. 7ll, 714, 50 L.Ed2 714 (1977) and

believed therein they found precedence which

would permit the admission of this otherwise

forbidden evidence.

In Oregon v. Mathiason (supra), the suspect

was asked to come to a police station for

questioning. He went voluntarily and unescorted.

When he arrived, he was free to go at any time.

He made a voluntary statement and left as

promised.

(14)

This Court stated:

",..there is no indication that the

questioning took place...where...free-

dom to depart was restricted in anyway.

He came voluntarily...he was immediately

informed that he was not under arrest.

At the close of the...interview respon-

dent did in fact leave...without hinder-

ance. It is clear from these facts

that Mathiason was not in custody or

otherwise deprived of his freedome of

action in any significant way."

Comparing Mr. Mathiason's circumstances

with those of the petitioner, Mr. Kester, we

find some striking differences.

Mathiason went voluntarily to the police

station, without escort. That means the court

found he had time to reflect upon the request

and then without further urging, and especially

without threats, he calmly, reflectively and

knowingly went into the police station.

Here, Mr. Kester was awakened from sleep

induced by intoxication and without opportunity

to reflect upon the circumstances, confronted

with a subpoena which, to him, meant he was

being served some legally restrictive notice

issued by the court requiring his presence,

(15)

that the officers were accusing him directly

of the commission of a crime telling him they

had evidence against him and that he was going

to be given “help” by them if he told them

what they wanted to hear. They displayed

badges of authority and he believed they had

him in custody.

The fact he was in his own business office

was absolutely ludicrous for it was his state

of mind created by the aura imposed by the

agents that was the inducing factor. Clearly,

it has been said “four walls do not a prison

make" and, in this case, Kester believed he

was in custody. This is the aura the Miranda

Decision (supra) strove to condemn.

Offsetting Mathiason (supra) we should

examine Orozco v. Texas, 394 U.S. 324, 22 L.Ed2

311, 89 S.Ct. 1095 (1969) where the interroga-

tion took place in a residence of the defendant.

There, this Court found that interrogation was

improper because it occurred after the arrest.

Clearly, therefore, an arrest would vitiate

(16)

further interrogation unless the defendant was

pre-warned.

Here, the government seeks to avoid the

law by claiming there was no arrest.

The petitioner asserts, however, that this

Court has never requived an arrest but has

merely used the point of arrest as a clear

guideline indicating the arrest was the thres-

hold clearly defined. There is no requirement

of arrest, however, as the government claims

for that is a clear oversimplification of the

test. By requiring an arrest, we would elimi-

nate the rationale supporting the decisions.

In Oregon v. Mathiason (supra), this

Court referred to the earlier decision in

Orozco v. Texas (supra) and stated:

“Any interview of one suspected of

a crime by a police officer will have

coercive aspects to it simply by vir-

tue of the fact that the police offi-

cer is part of a law enforcement

system which may ultimately cause the

suspect to be charged with a crime

111Miranda warnings are required only

where there has been such a restriction

on a person's freedom as to render him

in custody. It was that sort of coer-

cive environment to which Miranda by

its terms was made applicable."

(17)

In Loliver v. Wyrich, 469 F. Supp. 583

(1979, the custodial factors were discussed

further. There, the relevant factors were

determined to be the location of the qustioning,

how the participants came to be there, the

identity of the parties and whether the person

was truly free to leave.

The courts have apparently taken a case-

by-case approach adopting an objective standard

for determining whether an individual is suf-

ficiently in custody to require the protection

of the Miranda warnings Fisher v. Scafati,

439 F2 307 (Ist Cir.), cert. denied 403 U.S.

939, 91 S.Ct. 2256, 29 L.Ed2 719 (1971) ; Freye

v. United States, 408 F2 100 (lst Cir.), cert.

denied, 396 U.S. 859, 9C_ S.Ct. 129, 24 L.Ed2

111 (1969) and the interrogated person's sub-

jective beliefs regarding custody seem not to

be controlling. (Freye (supra))

The test appears to be the objective

manifestation that the defendant was deprived

of his freedom of action in some significant

way.

(18)

Chief Justice Warren, in speaking in the

Miranda Decision (supra) tracing the roots of

this protection deep within English law,

remarked:

",.eethis court has recognized that coer-

cion can be mental as well as physical

-+einterrogation takes place in privacy

-+-results in secrecy...results in a gap

in our knowledge as to what in fact goes

on in the interrogation rooms...the sub-

ject...deprived of every psychological

advantage...the atmosphere suggests the

invincibility of the forces of the law.

»«ethe police display an air of confi-

dence in the subject's guilt and from

outward appearance maintain only an

interest in confirming certain details.

The guilt of the subject is to be posited

in fact."

Here, perphaps we truly find the meaning

of "custodial interrogation”. In Orozco

(supra), the subject was interrogated in his

own home after being awakened from sleep. He

was not told he was arrested and yet this court

said the interrogation was custodial.

Here, Kester was told his arrest was

imminent and he was shown the legal summons to

appear before the court. Mr. Kester truly

believed he was in custody and his freedom of

(19)

action was not only impaired but forbidden.

He was as much in custody and under the coercion

referred to in Miranda (supra) as though he was

confineds to a cell.

The law in this area clearly requires

further clarity by this Court and it is respect-

fully suggested the issues presented by Mr.

Kester provide fertile ground from which a

clearer definition of "custodial" may be

f ramed.

Aside from Mr. Kester's asserted innocence,

this reason alone may be sufficient to grant

certiorari.

Il. Whether the petitioner was deprived of

due process when the trial court, after the

jury had indicated deadlock, charged the jury

to consider the cost of retrial rather than

the evidence.

On August 4, 1979, the jury reported it

was deadlocked and could not reach a verdict.

‘The trial judge called the jury back into the

courtroom and instructed it as follows:

(20)

“Now why don't I ask you to do this? Well,

first of all, as I sure you know without

my telling you that this is an important

case. It has been expensive in time, in

effort and in money to both the defense

and the prosecution. If you fail to agree

on a verdict the case is left open and

undecided. Like all cases it must be

disposed of at some time. There appears

to be no reason to believe that another

trial would not be costly to both sides,

nor does there appear to be any reason

to believe that the case could not be

tried again by either side any better

nor any more exhaustively. Any future

jury would have to be selected from the

same source from which you have been

selected...However, from all that I have

seen of you, you are just as intelligent

and just as capable of deciding these

issues as would be any other jurors that |

could be impaneled by this court. There

is no special reason to believe that some

other group on some other occasion would

find these matters less baffling or the

testimony any more acceptable to being

resolved than you have found it. There-

fore, if you can decide these matters in

good conscience it is your conscious duty

to do so."

"Now of course, these things suggest

themselves on brief reflection of all of

us who have sat through this trial. The

only reason I mention them to you now

especially that this may have escaped

your attention because your time has been

occupied with viewing the evidence and

with your discussions with each other.

There are matter, however, which along

with others and perhaps more obvious one,

remind us how desirable it is that you

reach an unanimous verdict if you cam do

so without violence to your individual

conscience.”

(21)

In the case of United States v. Burley,

400 F2 998 (1972), the Third Circuit spoke

directly on this point.

Judge Masterson, in Burley (supra) had

charged the hung jury that:

that

“Another thing you should bear in mind

is this: if this jury cannot agree, the

case is going to have to be tried again.

It took almost a week---did take a week

---and all those witnesses are going to

be called back again. The will be sub-

jected to examination, cross-examination

and so forth. So, it is not an insignifi-

cant event when the jury does not agree

in a case like this. It can produce

great additional expense to the govern-

ment and additional---well, I think I

have said enough."

The appellate court, in commenting on

language, stated:

“In this case we think that the concluding

sentences of the supplementary charge,

however well intended, were incorrect and

prejudicial. To the dissenting juror,

the charge must have meant that she should

consider the expense of a new trial to

the government and its imposition upon

the time of many people as a significant

factor that could and should persuade

her to change her vote for acquittal.

The possibility of a hung jury and a re-

trial is not relevant to that determina-

tion. The jurors should not be told that

this circumstance should influence them

-+-In our judgment it was reversible error

to give such an instruction.”

(22)

In this case, the jury was given instruc-

tions and told to consider the expense and

inconvenience and, further, that someone would

have to make a decision. (Not necessarily so

for there could be other hung juries.) Fur-

ther, it was to specifically consider that

factor over and above the evidence. The judge

specifically told the jury it had to consider

a factor over and above those which had been

present when they were “occupied with viewing

the evidence and with your discussions with

each other”.

The jury was being told that, if it were

unable to come to a decision after reviewing

the evidence and having discussions with each

other, it was then to consider the expense of

retrial.

This clearly constituted error and the

petitioner was denied a fair trial and due

process.

(23)

Ill. Whether the trial court erred in permit-

ting the government agents to testify regarding

the interview described as a confession after

they had destroyed their original notes.

This issue was of first impression before

this Court and the petitioner raises the argu-

ment that the Alcohol, Tobacco and Firearms

Agents had destroyed their original notes

taken of the interview during which he was

alleged to have made an inculpatory statement.

That interview occurred on December 13,

1977 and two agents were present. Kester had

testified that he was intoxicated, disoriented,

annoyed and frightened and told the agents he

knew nothing, but, since he believed he was

being arrested unless he gave them a coopera-

tive statement, he asked them what they wanted

to know. The agents basically verified that

scenario, but said the petitioner told them he

had met someone at a bar who acted as a "middle-

man" and had given that person Five Thousand

Dollars ($5,000.00).

Agent Perlick, the ATF Agent involved,

was questioned during testimony. He testified

(24)

he believed the notes may have been destroyed,

but would look for them. When they were not

produced, the petitioner made motion that the

case against him should be dismissed.

The court concluded the motion should be

denied since there was no evidence of bad

faith on the part of the agents and the peti-

-tioner referred to the case of United States

v. Vella, 562 F2 275 (1977), wherein the Third

Circuit spoke out exactly on this point and

stated:

"...-the government intimates that the

preservation of rough interview notes is

not so much a new ‘policy’ as it isa

temporary stopgap. We reject this

approach. To avoid further misunderstan-

dings we specifically adopt the precepts

announced in United States v. Harrison,

173 U.S. App. D.C. 260, 522 F2 Z21 (1975)

as the law of this Circuit, to wit, the

rough notes of FBI Agents should be kept

and produced so that trial court can

determine whether the notes should be

made available to the appellant under

the rule of Brady v. Maryland, 373 U.S.

5, 3 8.0¢. liu, te LFA 215 (1963) or

the jJenk’s Act.”

The decision in United States v. Vella

(supra), which was based upon the case of

United States v. Harrison (supra), resulted

(25)

from an incident which occurred during the

term of FBI Director Hoover and United States

Attorney Kennedy. Apparently, when Brady

(supra) was decided and the Jenk's Act passed,

Director Hoover wrote to the Attorney General

requesting directives regarding what should

occur with rough notes taken by agents at times

of interview. Attorney Kennedy suggested they

be continued and retained as part of the case

file. This directive became pari of the FBIi

regulations and, in the case of United States

v. Harrison (supra), a matter arising in the

District of Columbia, the court found the

failure to retain those notes was critical

since the government agent had thereby pre-

vented the trial judge from viewing them in

camera to determine if they were Brady material

and, consequently, the case had to be dis-

missed.

In the case of United States v. Vella

(supra), the court determined the law to be

prospective in nature as to the Third Circuit

(26)

but was decided prior to the interview in this

case.

The trial court referred to the case of

United States v. Neiderberger, 580 F2 63 (1978)

as sufficient reason to dismiss the defendant's

motion. It is submitted the case is easily

distinguishable. In Neiderberger (supra), the

agent destroyed the notes pursuant to an

Internal Revenue Service regulation and the

court felt there was other evidence which

would be sufficient to lead to the guilty of

the defendant. In this case, however, the

evidence is not quite so clear. The only

‘evidence linking the petitioner with the arson,

other than is alleged “confession”, was the

testimony of the admitted liar Coppola (who has

now recanted). Here, the petitioner refuted

the alleged statement by saying that it was a

misrepresentation cf the occurrences at the

interview and, perhaps, the rough notes may

have decided the issue. There was a crucial

difference in the assertions by Kester and

Perlick and, when asked by the prosecuting

(27)

attorney if he were certain regarding the

responses of Mr. Kester, the agent responded:

"I'm not exactly sure what he responded.”

The law of the Third Circuit now in word

only adheres to the Decision of United States

v. Harrison (supra) and United States v. Vella

(supra) somewhat modified by United States v.

Neiderberger (supra).

There has been no determination by the

United States Supreme Court regarding this

important issue and, again, this case would be

an excellent vehicle by which this Court may

speak out on the issue.

IV. Whether the trial court erred in permitting

an in-court identification based upon an

impermissibly suggestive photographic display.

On July 19, 1979, a motion to suppress

was Filed and a hearing held out of the jury's

presence wherein Richard Coppola testified that,

in May of 1977, he had met the “owner of the

building". He described that person as a

short man, old, light haired, gray hair with

dark glasses and heavyset. He testified that,

(28)

on February 15, 1979, he was shown a series of

photographs and the photographs were produced.

The series of photographs was of a group

of individuals all of whom were Coppola's

friends with the exception of one man whose

identity could fullfil the description given

the “owner” of the building. There was no

other photograph of any individual remotely

resembling that man and that person was the

petitioner.

Coppola admitted in his testimony that

none of the persons shown him had even the

general characteristics of the petitioner.

‘It is asserted that display was suggestive

and the suggestiveness was sufficient to pre-

judice any further in-court identification.

It must be recognized that the improper

employment of photographs by police may some-

times cause witnesses to err in identifying

criminals, Simons v. United States, 309 U.S.

384 (1968), for the witness may have obtained

only a brief glimpse of the criminal or may

(29)

have seen him under poor conditions. That

danger is increased if the police display only

the picture of a single individual who generally

resembles the person he saw and, in this case,

not only was this photograph the only one

' resembling the petitioner but was in with a

group of photographs of persons all of whom

were known to the identifying witness with the

exception of the petitioner's.

As in Simons (supra), a pre-trial photo-

graphic identification, which is so impermis-

sibly suggestive, would give rise to a very

substantial likelihood of irreparable misiden-

tification and the conviction must be set

aside. In this particular case, after the

trial, Coppola testified the police had shown

him who the person they wanted identified was

and showed him the photograph of the petitioner.

He further testified that, when he was hauled

into the courtroom, he had been pre-instructed

where the petitioner would be sitting so that

he culd make and in-court identification.

(30)

Under these circumstances, it goes without

saying that the due process which must be

afforded a party in a criminal case has not

been adhered to.

IV. Whether the trial court deprived the

petitioner of due process after the key wit-

ness.recanted his testimony and admitted per--

jury.

In Pennsylvania, the law on recanting

witnesses is clearly stated in the case of

Com. v. Sholder, 201 Pa.Super. 642, 198 A2d

632 (1963), wherein that court cited certain

standards to determine if the testimony of a

recanting witness should be the basis of a new

trial. In this case, the witness Richard

Coppola was an admitted liar and had an exten-

sive criminal record prior to the trial of the

petitioner. He had made a plea bargain with

the prosecutor that, in exchange for his testi-

mony, he would be given consideration at the

time of sentencing and placed on probation.

He was, in fact, sentenced before The Honorable

Joseph L. McGlynn and given probation although

(31)

he had admitted commission of a series of

crimes involving him in assaults, thefts,

frauds, arson and even murder.

After the sentencing, the witness apparently

attempted to withdraw his plea of guilty and,

at the hearing to withdraw, recanted all the

testimony he had given at the trial of the

petitioner admitting, in fact, it was all fabri-

cated by the witness in connection with this

prosecution. The petition to withdraw the

plea was denied and finally the government

prosecuted him and he is now incarcerated for

crimes related to those fabrications.

In the case of Com. v. Sholder (supra),

the Superior Court stated a new trial would

be granted if four (4) requirements were met:

first, if it had been discovered after the

trial and could not have been obtained prior

to the conclusion of the trial by exercise of

reasonable diligence; secondly, that the infor-

Mationis not merely corraborative or cumulative;

thirdly, that the information will not be used

(32)

solely for the impeachment of the credibility

of.a witness; and, fourthly, if the infor-

mation is of such a nature and character that

a different verdict would likely result if a

new trial were granted.

In this case, all of the information

leading to the conviction of the petitioner was

based upon the testimony of Coppola and no one

else. Without him and his testimony, the

court admitted to the jury there would be no

case. The recanting of this witness, whose

testimony, since he was in the marshal program,

was unavailable to the petitioner prior to

trial, if discovered after trial, clearly fell

into all the catagories described by the

Superior Court of Pennsylvania. Therefore, a

new trial is in order.

V. Whether the trial court erred in charging

the jury the co-defendants’ testimony should

be viewed with caution.

This issue is extensively briefed in the

Joint Petition for Writ of Certiorari prepared

(33)

and submitted by F. Emmett Fitzpatrick and

Joel Harvey Slomsky, Esquires for their clients,

Petitioners Michael Morrone and Ronald Turchi.

Respectfully, rather than be redundant,

this petitioner requests Your Honorable Court

examine that Joint Petition and the argument

there made be adopted for purposes of this

issue.

CONCLUSION

For the foregoing reasons, the petitioner

respectfully submits that a Writ of Certiorari

should be issued to review the decisions of |

the United States Court of Appeals for the

Third Circuit in this case.

Respectfully submitted:

At torney for Petitioner

Moderwell L. Kester

November, 1981

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 80-2760

UNITED STATES OF AMERICA

-VsS-

MODERWELL L. KESTER, a/k/a

Lee Kester,

Appellant

(D.C. Criminal No. 79-00071-07)

ON APPEAL

FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued

September 14, 1981

Before: GIBBONS and HUNTER, Circuit Judges

and GERRY, District Judge*

FRANK J]. MARCONE, ESQ.

208 West Front Street

Media, Pennsylvania 19063

Attorney for Appellant PETER F. VAIRA, JR.

United States Attorney

Philadelphia, PA

ROBERT J. ERICKSON

Attorney

U.S. Dept. of Justice

Washington, D.C. 20530

RONALD G. COLE

Special Attorney

U.S. Dept. of Justice

Philadelphia, PA.

Attorneys for Appellee

*Hon. John F..Gerry, United States District

Judge for the District of New Jersey, sitting

by designation.

fraud,

JUDGMENT ORDER .

Moderwell L. Kester, convicted of mail

18 U.S.C. 81341, racketeering, 18 U.S.C.

$81961-63, and conspiracy, 18 U.S.C. 81962(d),

contends:

l.

2.

That the government did not prove the

existence of an enterprise within the

meaning of 18 U.S.C. 51961;

That the court erred in charging that

his testimony was that of an accomplice

and should be received with caution;

That the court's supplemental charge is

inconsistent with United States ax :;

Fioravanti, 412 F.

cert. denied, 396 U.S. 837 (1969);

That the cousrt erred in failing to grant

a new trial on the basis of recanted

testimony of Richard Coppola;

That the court erred in not discharging

the entire jury panel when a juror made

reference to the mafia;

That the court erred in sequestering the

jury;

That the court erred in admitting evi-

dence of statements which he made in the

absence of Miranda warnings;

That the court should have granted a

mistrial because the government did not

preserve the original notes of the agents

who interviewed him;

9. That the court erred in ruling that

Richard Coppola's in court identification

was not the product of an impermissibly

suggestive photographic display.

We find no error.

It isORDEREDandADJUDGED

that the judgment of the district court is

affirmed.

BY THE COURT:

s/John J]. Gibbons

Circuit Judge

Attest:

s/Sally Mrvos

sally Mrvos, Clerk

Dated: Sep 15 1981

IN THE UNITED STATES DISTRICT COURT

POR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

MICHAEL MORRONE, a/k/a Mike:

Morrone 3

RONALD TURCHI, a/k/a Ronnie:

Turchi

GATON CASSELLU, a/k/a :

Junior Cassello :

NICHOLAS SPADEA, a/k/a :

:

:

Nicky Spadea

DAVID DI STASIO

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester 3

OPINION

DITTER, J. October 27, 1980

Three defendants, Michael Morrone, Ronald Turchi, and

Moderwell Kester were convicted by a jury of nine counts of mail

fraud, a violation of 18 U.S.C. §1341. Morrone, Turchi, and Gaeton

Cassello were convicted of racketeering, a violation of 18 U.S.C.

$1961-63, and of conspiracy to engage in racketeering, a violation

of 18 U.S.C. §1962(d). Their two co-defendants, William Fox and

David DiStasioc, were acquitted. Another co-defendant, Nicholas

Spadea, was found to be incompetent to stand trial and she indict-

ment against him was ultimately dismissed. Defendants have filed

post-trial motions contending that they were prejudiced by pre-

trial rulings, rulings during the trial, and errors in she charge

to the jury. For the reasons which follow, sheir motions must Se

refused.

The evidence, which because of the verdict must Se viewed

in the light most favorable to the Government, showed shat in 1975

.

-i.-

Michael Morrone operated a diner in Philadelphia, employing Ronald

Turchi, Gaeton Cassello, and Richard Coppola. Coppola was to be-

come the chief Government witness at trial. In November, 1975,

Morrone directed Coppola to assist Turchi and Cassello in the setting

of a fire at the Archway Tavern, Front and Arch Streets, Philadelp! a

Pursuant to these instructions, Coppola bought naptha, a flammable

liquid, and helped Cassello prepare paper fuses to spread the flames.

The next day he drove Turchi and Cassello to the bar and carried the

incendiary materials in through the rear entrance. He then left.

Acting again on Morrone's instructions, Coppola picked up Turchi and

Cassello later that evening. They told him they had set the fire.

Coppola drove near the bar and could see the flames shooting out i:~

to the street. The next day, the three reported to Morrone the

events of the night before. When Morrone directed Coppola to return

and examine the building, Coppola saw that it had been heavily

damaged by fire.

Several months later, Turchi and Coppola obtained work at

Schmidt's Brewery where Morrone was employed in a supervisory capaci+.

One day, Coppola observed that Morrone and Turchi met with a man

whose name Coppola later learned was Harry Bassion. Immediately

after the meeting, Morrone told Coppola they had a big “score” comins

up. Coppola interpreted this expression to mean that they would Se

involved in some significant criminal activity. Following another

meeting between Turchi and Harry Bassion, which Coppola also observed

Turchi told Coppola they were planning the arson of a bar as soon as

the occupants of rooms upstairs vacated the premises. Several days

later, Bassion met Coppola and handed him the keys to the Slue 3el1

Bar, which was owned by the wife of William Fox. Coppola <hen de-

-2<-

livered the keys to Turchi. In March, 1976, at Morrone's instruc-

tions, Coppola, Turchi, and Cassello drove to the bar and set it on

fire. Coppola received $250. from Turchi for his participation in

this crime. After the fire, and again at Morrone's direction,

Coppola and Turchi met with Harry Bassion at the Continental Bank

to obtain a loan. After Bassion co-signed the obligation, the bank

issued a check to Coppola for $5,000. He cashed the check and to-

gether with Turchi gave the money to Morrone. Coppola did not repay

the loan but from the bank's records, it could be inferred that

Bassion did.

In January, 1977, the Commercial Office Supply Co., the

sole occupant of Moderwell Kester's warehouse at 1150 East Orthodo::

Street, Philadelphia, told him of its intention to terminate its

lease. Although he had hoped to sell the property for $125,000,

Kester eventually accepted an offer of $65,000 with settlement

scheduled for May 6, 1977. The original printed agreement of sale

‘ form provided that the parties’ respective obligations would not

be affected in the event of loss by fire. However, as a result of

negotiations between Kester and the purchaser, it was agreed that in

the event of fire or casualty loss, the contract would be considered

automatically terminated.

A few weeks later, in April, 1977, Morrone told Turcshi

and Coppola that a big “score” was coming up. On April 28, 1977,

Morrone, Tuchi, and Coppola drove to one of the parking lots of the

Philadelphia Zoo where, according to Morrone, they were to meet with

the owner of the building which they were going =o burn. After they

had waited for about 45 minutes, Coppoia got out of the car and re-

mained at that parking lot while Morrone and Turchi drove =o <he

-j<-

Zoo's other parking lot. When they returned, Morrone said the

“score” would be worth a quarter of a million dollars.

On Monday, May 2, 1977, acting upon Morrone's instructi«-s

Turchi and Coppola went to the warehouse on Orthodox Street. They

were to pick up a down payment from the owner and get the keys to

the building. On the second floor of the building, Turchi and

Coppola met a man, identified at trial by Coppola as Kester, who

handed $5,000 to Turchi and also gave him the keys to the buildinc.

Later that day, Turchi and Coppola delivered the money to Morrone.

On Wednesday, May 4, 1977, Morrone met with Turchi and Coppola at

Schmidt's and told them to get the necessary materials and start

the fire before Friday. Coppola and Turchi-then got five large

plastic containers of gasoline, and on Thursday, May 5, drove to tno

warehouse using a car Coppola borrowed from his girl friend, Pat

Bressi. They hid the gasoline inside the building, but decided nct

to start the fire then because there were too many children playins

nearby.

Late that afternoon, Turchi and Coppola returned to the

warehouse with Nicholas Spadea, who also worked at Schmidt's. How-

ever, they decided there were still too many children near the ware-

house to permit them to start the fire. Accordingly, the three men

returned to Schmidt's and called Morrone. He came to the brewer,

and instructed a fourth man, David DiStasio, to go with the other

three and to use a second car. .The four paired up and set off in

Coppola's and Turchi's cars. Spadea waited in Turchi's car several

blocks from the warehouse, while the other three drove to the Suild-

ing in Coppola's car. While DiStasio remained in the car, Turchi

and Coppola went into the building and poured gasoline on the

floors. Coppcla lit a match, but as the fire started, ne was

-d-

engulfed in flames. He was badly injured, but with Turchi's help

got to the car after discarding much of his clothing. The four men

returned to Schmidt's and Morrone was informed of what had occurrc<.

At Morrone's direction, Coppola was taken to the home of Morrone's

sist.r where he was treated by a doctor. Turchi and DiStasio then

took Coppola to the home of Pat Bressi where he stayed during his

period of recuperation.

The warehouse was not destroyed, but it suffered damage

of about $20,000. Thereafter, Kester filed insurance claims which

resulted in certain matters going through the mails. It was these

mailings which formed the basis for the mail fraud charges on which

Morrone, Turchi, and Kester were convicted. On December 13,

1977, two agents from the Bureau of Alcohcl, Tobacco and Firearms

(ATF), Harold C. Perlick and Robert Piccirilli, went to Kester's

place of business and served a Grand Jury subpoena upon him. In

addition, they talked with him about the fire. Kester admitted he

had planned the fire with a eusanges he met in a bar. Kester then

told the agents he wanted to say nothing further prior to his talx-

ing with his lawyer. When the agents started to leave, Kester asked

what he could do to help himself. The agents stated that if he

Gecided to cooperate with the authorities, they would recommend <hat

the court be made aware of that fact. Although Kester said he had

been drinking, his demeanor and speech appeared so be normal to the

agents.

I. All Defendants’ Contentions

A. Coppola's “Recantation”

All defendants first contend that they should be granted

a new trial. because the principal witness against them. tichard

Coppola, recanted. There is no merit in their position.

Like the defendants in this case, Coppola was indicted

for mail fraud, racketeering, and conspiracy. He entered a plea

of guilty to certain of these charges before the Honorable Joseph

L. McGlynn, Jr., om December 1, 1978, Crim. No. 78-295-2. Sentence

was imposed by Judge McGlynn on September 6, 1979. Thereafter,

Coppola petitioned for leave to withdraw his plea of guilty, con-

tending that he had been coerced by the Government into testifying

falsely in the proceedings before me. Judge McGlynn conducted evi-

dentiary hearings and after they were concluded on November 16, 1979,

stated:

Well, I don't have any difficulty with this

petition.

In this proceeding to withdraw his guilty plea,

I think Mr. Coppola is lying in his teeth. His testi-

mony is completely incredible. It's refuted by his

statements before me at the change of his plea, by

his statements given to the agents, by the agents

themselves, and by Mr. Cole, by his testimony be-

fore Judge Ditter; all of these things convince me

that this man is now lying. And, Counsel for Mr.

Coppola asked me why he would do this? And, [I have

a pretty good idea why he would to this. I think

he has been reached between the time that he testi-

fied before Judge Ditter in that other case, and

now. And, I think that perhaps the Justice Depart-

ment ought to look into it, and see if there has been

any obstruction of justice or subornation of perjury.

In this instance, I have no difficulty in con-

cluding that Mr. Coppola was not coerced, or forced,

or in any way denied any of his rights in connection

with his entering a guilty plea. He was fully advised

of his rights by me, he acknowledged he understood them.

He acknowledged the fact that his plea had to be ‘free

and voluntary. All of these factors were gone into at

the time he changed his plea.

-6-

On April 22, 1980, Coppola pleaded guilty to conspiracy

to obstruct justice, Crim. No. 80-144, before the Honorable Louis

C. Bechtle. He admitted receiving $10,000. from a relative of one

of the arson defendants. He used $5,000 to pay the attorney who

represented him when he petitioned to withdraw his plea of guilty

and retained $5,000 himself. See In re: Grand Jury Investigation

s N Vv. ’ F. 24 (No.” 80-1290, 3d Cir.

Sept. 15, 1980). He was then sentenced for this offense.

Both Judge McGlynn's findings and the subsequent events

' show that Coppola's recantation was procured and should not be

credited. It cannot serve as the basis for post-trial relief for

these defendants. ,

B. The Cautionary Instruction Concerning Turchi's

Testimony ‘

All defendants assign as prejudicial error my instruc-

tions that the testimony of Ronald Turchi should be received with

caution and viewed with great care. Turchi's own contentions in

this regard are the most detailed. In summary he argues that

although he was not an accomplice, I gave the jury an accomplice

instruction. He maintains that the policy reasons which require

a cautionary charge as to accomplice witnesses who testify for

the prosecution are inapplicable to witnesses who testify for

the defense. Moreover he contends I implied to the jury that

he was an accomplice and thus reduce. the Government's burden to

establish guilt beyond a reasonable doubt.

-7<-

As is always the case, a portion of the charge about

which complaint is made must be viewed in light of what took place

at trial and in connection with the rest of the instructions.

Turchi's challenge is to four paragraphs which dealt specifically

with his credibility. It was prompted not only by Turchi's

testimony, but also by counsels’ summations.

Of the six defendants, only Kester and Turchi took the

stand. Turchi said he first met Coppola in 1975. About a week

prior to the fire he agreed to participate with Coppola in the

burning of the Orthodox Street warehouse. He knew it would be

criminal to do so, but wanted the money he said Coppola offered.

On May 4, 1977, he and Coppola drove to the Orthodox Street proper::’.

On the way, Coppola explained what was going to happen. When they

arrived, they took certain plastic containers of gasoline and

trash bags with rolled up paper in them from Coppola's car and hid

them in the warehouse.

The next morning they met and “went over a few things.”

Late in the afternoon, Coppola called him, and they drove to the

warehouse. On the third floor they got the materials that Coppola

had there. They spread them all around. Coppola poured gasoline

and Turchi asked him if he knew what he was doing. Coppola replied

that he did. They argued and Coppola said he was not going to

start the fire. Nonetheless, he did so and at the same time set

himself on fire. Turchi said he pulled Coppola's clothes off and

drove him to Pat Bressi's house.

Turchi said that he had not been involved with Coppola

in any acts of arson prior to that time nor since then. He speci-

fically denied having anything to do with the fire at the Archway

Tavern or the fire at the Blue Bell Bar.

Turchi denied seeing Kester or Fox prior to the trial,

but testified he knew the other defendants. In the summer of 1975,

he and Cassello rented a diner from Morrone and employed Coppola to

run it. That arrangement continued until mid 1976 when Turchi went

to work at Schmidt's brewery where Cassello and DiStasio also worked

Morrone was general manager, and Spadea dock supervisor. Later

Coppola also came to work at Schmidt's, and at one time, Morrone

fired them both, but then rehired then. Turchi said he had never

engaged in any racketeering enterprises, mail fraud, or conspiracy

with the other defendants. Morrone never gave him any order regard-

ing any fire or arson, nor did he ever hear Morrone tell Coppola,

DiStasio, or Cassello anything about a fire. He also denied see-

ing Kester at the warehouse, and receiving from Kester any money

or the keys to the building.

Thus, Turchi denied the salient features of Coppola's

testimony about the involvement of Morrone and Cassello in activitie

from which the jury could find them guilty of mail fraud and

racketeering. His testimony absolved DiStasio and contradicted

Coppola as to Kester. Turchi did, however, admit helping commit

arson at the Orthodox Street warehouse. Of course, he was not

charged with arson and his being involved with only one fire would

not make him guilty of engaging in racketeering activities or con-

Spiracy to do so. In short, Turchi not only denied his own guilt,

but exculpated Morrone, Cassello, and DiStasio.

-9-

During his summation, counsel for each defendant

attacked Coppola's credibility. In addition, DiStasio's lawyer

argued that Turchi was to be believed because he had incriminated

himself. Counsel for Morrone also contended that Turchi, who had

exonerated Morrone, should be believed because his testimony had

been corroborated and because he had subjected himself to the

serious charge of arson.

Counsel for Turchi claimed that Turchi had no motivation

to lie. He went on to say,

Ladies and Gentlemen of the jury, in the Common-

wealth a felony in the first degree is punishable

by a period of imprisonment for twenty years. In

the Commonwealth of Pennsylvania starting a fire

deliberately with the result of endangering human

life by statutes of this State, Section 3301 of the

Pennsylvania Criminal Code, is a felony of the first

Mr. Turchi at great jeopardy to his own freedom

and to his own future took the stand here to be

vindicated by this j for that which he did not do

and in so propgeting 1f he admitted that which

he has done I think that is a case of a man with

every motivation hed lie “me has ouabe eel the truth.

pubs 3 ou she =

z yo

ud perpe Fan’ chis juny hee been Richasé Coppola

ona you should, as Mr. Cole suggested if you believe

Ronald Turchi, you should find him not guilty of all

the charges. (emphasis added) (N.T. 14-180-81)

sta , Of course, was untrue. r no g.

The Supreme Court of Pennsylvania had previously ruled that

one who has been acquitted in federal court on a charge of

mail fraud growing out of a fire and a claim for insurance

could not thereafter be prosecuted for arson in the courts

of the Commonweslti. Commonwealth v. Grazier, 481 Pa. 622,

393 A. 24 335 (1978).

There was therefore presented to the jury the proposition

that Turchi's credibility was established by his admitting he was

an arsonist and thus that he and the other defendants should be

found not guilty of the charges in this case.

Included with my instructions on credibility was an

accomplice instruction as to Coppola. '*) 1: then turned to Turchi

and said that although his testimony should also be received with

(3) Charge re Coppola, N.T. 15-29-33

The testimony of Richard Coppola is of extreme importance

in this case and his credibility is a matter which you must

weigh carefully and therefore in addition to what I have told

you about credibility in general there are some things to be

said about his credibility in particular. His testimony, if

believed, shows that he and certain of the defendants were

accomplices in the commission of certain of the crimes chargec

Now, an accomplice is one who unites with another person

in the commission of a crime voluntarily and with common intent.

An accomplice does not become incompetent as a witness because

of his participation in the crime charged. On the contrary,

the testimony of an accomplice alone, if believed by the jury,

may be of sufficient weight to sustain a verdict of guilty

even though not corroborated or supported by any other evi-

dence. However, a jury should keep in mind that such testimony

is always to be received with caution and weighed with great

care.

Now, in evaluating the evidence received from Richard

Coppolla you should keep several things in mind.

Pirst of all, in the first place his testimony is a highly

significant part of the case introduced on behalf of the

Government. If you do not accept the essential part of what

Richard Coppolla says, you cannot convict any of the defendants

of anything.

The second reason why you should look with particular care

at Richard Coppolla's testimony is founded upon his admitted in-

volvement with certain criminal activity.

Most witnesses come in to court presumed to be innocent,

unless shown otherwise, of any act which might cast doubt upon

that witness’ truthfulness. No such presumption exists so

far as Richard Coppolla is concerned. He has admitted his

part in acts which may cause you to question his veracity.

The third matter which you may consider in evaluating

the testimony of Richard Coppolla is the agreement which he

made with the Government concerning his being prosecuted and

concerning his giving evidence in this matter. In this regard

you may consider whether any hope of reward, any fear of dis-

favor, any expectation of leniency or any payment of living

-ll-

caution and weighed with great care, standing alone it was sufficient

to work the acquittal of any defendant on whose behalf he testi-

TZ) Contd

expenses in the past or any payment hoped for in the future may

have affected in any way the evidence that he gave here in

court. Of course, you may also bear in mind any commitment

or promise he made to be truthful or any fear that he might

have of further prosecution for the giving of false testimony.

In addition, it's been contended to you that Richard

Coppolla on occasions when he was under oath and on occasions

when he was not under oath made statements that were incon-

sistent with testimony which he gave here in court. If you

find that there were such inconsistencies and that they related

to matters which were material and important, you may also takc

that into account in appraising and weighing the testimony of

Richard Coppolla. Or if you find that they were matters of

insignificance but nonetheless help you to understand his

truthfulness or lack of truthfulness, you may take them into

consideration.

There is no rule of law which forbids a jury's convicting

upon the unsupported evidence of one who claims to be an ac-

complice, or one who has made an agreement with the Government,

or one who has made prior inconsistenct statements, or one who

has done all of those things. However, logically a jury cannoc

convict upon the testimony of such a person unless it believes

him beyond a reasomable doubt.

You may, however, turn to see whether or not there is

corroboration for any of the things which Richard Coppolla has

said. By corroboration we refer to evidence which is supple-

a to words offered by the witness and which tends to

and confirm the things which he said. This testi-

pnt is to be classed as corroboration and it need not relate

solely to the main facts involved, but may be considered as

corroborative when it relates to relevant and material facts

which have a direct issue on the main facts in this case.

Corroborative testimony does not have to occur to all that

a witness has said. If corroboration shows that he, or she,

has testified truthfully in some important particulars, the

jury itself may be convinced that he has done so in others.

Now, here it has been argued to you that there are certain

matters or corroboration, and it's also been argued to you on

the other side that those matters are so general in nature that

they don't corroborate nn henge 2 Well, it's going to be up to

you to decide, to go through the evidence, if you think that's

the proper way to approach it, to determine whether or not there

are any matters which corroborate the testimony of Richard

Coppolla. Sometimes you may find a straw here anc a straw

there and wind up with something that would burn down a ‘own.

On the other hand, you may find no corroboration. It will be

up to you to determine whethere there is corroboration and i

so how that will affect your appraisal of the sestimony of

Richard Coppolla. Even if there is no corroboration you may

accept the testimony of Richard Coppolla if you find ic has

the ring of truth. “

tied. '3) re was this portion of the charge which all defendants,

but especially Turchi, claim was prejudicial error.

TZ) Gont'’d

As I told you before, there is no rule of law which

commands you to disbelieve the uncorroborated testimony of

one who claims to be an accomplice. The determination of

whether corroboration is necessary or the sufficiency of

such corroboration is solely for you. The only requirement

of law is that such testimony is always to be received with

caution and weighed with great care.

(3 Charge re Turchi, N.T. 15-33-35

Just as the testimony of Richard Coppolla requires

particular attention in view of his being an accomplice,

so does the testimony of Ronald Turchi require special

So. Some of the things that I said about Richard

ly with equal force to Ronald Turchi. His testi-

mony marry believed, shows that he and Richard Coppolla were

accomplices in the commission of arson, a serious crime under

the laws of Pennsylvania. However, one who admits serious

crimes remains competent to testify on behalf of either the

Government or the defense. Thus, the testimony of Mr. Turchi

alone, if believed by the jury, may be of sufficient weight

to raise in — @ reasonable doubt, or be substantive

evidence of as to the defendants on whose behalf

he testified. And this is true even if such testimony is

miot corroborated or supported by other evidence. However,

you should keep in mind that the testimony of someone like

Mr. Turchi is always to be received with caution and weighed

with great care. Much the same reasoning that is applicable

to Mr. Coppolla is applicable to Ronald Turchi.

Ronald Turchi's testimony is highly significant so far

as the defendants Morrone and DiStasio are concerned, since

he testified that they had no part in the Orthodox Street

warehouse fire. If you believe him you could not find either

of them guilty.

The second reason why you should look with particular

care at Mr. Turchi's testimony is founded upon his admitted

involvement with a criminal activity. His admitted partici-

pation with a significant criminal activity may cause you

to question his veracity. Whatever the effect of his testi-

mony may be so far as others is concerned, you may also con-

sider it insofar as his own guilt is concerned. You may

look to the evidence to see if there is corroboration for

the things that Mr. Turchi said. If there is corroboration,

just as you may examine the testimony of Richard Coppolla

in light of that corroboration, so you may find that corrobora-

tion will strengthen the testimony of Mr. Turchi.

Bear in mind, however, insofar as Ronald Turchi testi-

fied on behalf of other defendants, his testimony may be suf fi-

cient standing alone without corroboration to work their ac-

quittal. However, you should receive such testimony with

caution and weigh it with great care.

-13-

A defendant is competent to testify, and if he does so,

his credibility is to be judged in the same way as that of any other

witness. ‘*) A jury's privilege to take into consideration significsa

criminal activity in assessing credibility has long been accepted

and is specifically recognized by Federal Rules of Evidence 609(a)

and 608 (b) . ‘5) It follows that some instruction as to the possibl«

Bet ni Sos Ss, 583, :

° u ’ Federal Jury Practice and In-

eusestiens. $17. 12 (34 ed. 1977), and cases cited therein.

(S) Rule 609(a) of the Federal Rules of Evidence provides:

(a) General rule. For the purpose of attacking the

credibility of a witness, evidence that he has been con-

victed of a crime shall be admitted if elicited from him

or established by public record during cross-examination

but only if the crime (1) was punishable by death or in-

prisonment in excess of one year under the law under which

he was convicted, and the court determines that the probative

value of admitting this evidence outweighs its prejudicial

effect to the defendant, or (2) involved dishonesty or false

statement, regardless of the punishment.

In pertinent part Rule 608(b) provides:

(b) Spec tes instances of conduct. Specific instances

of the of a witness, for purpose of attacking

or supporting his credibility, other than conviction of

crime as provided in rule 609, may not be proved by extrinsic

evidence. They may, however, in the discretion of the court,

if probative of truthfulness or untruthfulness, be inquired

into on cross-examination of the witness (1) concerning his

character for truthfulness or untruthfulness, ... .

The two rules may be read together. Rule 609(a) es-

tablishes the type of criminal activity that may be con-

sidered on questions of credibility. Under 608(b), convicticn

is not a prerequisite to bringing such matters before the

jury. This is not to say, however, that in this case I would

have permitted the Government to elicit from Turchi on cross

examination his activities as an arsonist. Obviously, shat

question is not before me. Nonetheless see 36 A.L.R. Fed. 364.

effect of Turchi's criminality on his credibility was in order.

The question then becomes whether these particular instructions

were erroneous. Analysis and precedent show they were not.

In the first place, large discretion is vested in the

trial judge as to the language to be used in an instruction. In

forming a charge on the elements bearing on credibility, the judge

is not to be bound to a hard and fast formula as to each phase of

his charge, but it is proper to instruct the jury as to the matters

which they may or should consider in determining the questions

involved. United States v. Rajewski, 526 F. 2d 149, 160 (7th Cir.

1975), cert. denied, 426 U.S. 908, 96 S. Ct. 2231, 48 L. Ed. 2d

833 (1976). 4

Secondly, as was said in the charge approved by the

Supreme Court in Hoffa v. United States, 385 U.S. 293, 312 n. 14,

87 S. Ct. 408, 418 n. 14, 17 L. Ed. 24 374 (1966),

All evidence of a witness whose self-interest is

shown from either benefits received, detriments

suffered, threats or promises made, or any

attitude of the witness which might tend to prompt

sccused should be considered with caution and weighed

with care.

Turchi was plainly motivated by self-interest. Had his testimony

been accepted, it would have exonerated him and three of his

co-defendants. It was no slip of the tongue or editorial nicety

when his counsel announced, "Your Honor, we call the defendant

Ronald Turchi." (emphasis added, N.T. 13-210).

In view of Mr. Turchi's claim to have been Coppola's

accomplice to the state crime of arson, those opinions which deal

with an accomplice who testifies for the defense are instructive.

The leading case is United States v. Nolte, 440 F. 2d 1124 (5th

Cir.), cert. denied, 404 U.S. 862, 92 S. Ct. 49, 30 L. Ed. 24 196

(1971). There it is said, -15-

Nolte insists, however, that the instruction

may only be given when an accomplice testifies for

the prosecution, and not when he testifies in behalf

of defendant. we a It @ar that an

3 ~ as SSC » SS rd. s

° hether he testifies Yor the prosecution or

: = the trial judge's decision whether

Eo gi he instruction is not a matter requiring

S onal scruti: ost, it is a

2 : the general condu he trial, o h.

he judge's powers are discretionary like h: on 1

ir Cros ixamination, or hi : nts on the

dence . Jn - | tes v. ec) zx, CaS o 933, 62

a 1007, 1009; rd, Lyles v. United States, 5

Cir. 1957, 249 F. , 746, cert. denied, 1958, 356

U.S. 931, 78S. Ct. 773, 2 L. Ed. 2d 761. Whether

° : on ¢ as

: 2 accept an accomp

t..A,. added) 440 F. 2d

United States v. Urdiales, 523 F. 24 1245, 1248 (Sth Cir. 1976),

cert. denied, 434 U.S. 1071, 98 S. Ct. 1253, 55 L. Ed. 24 774

(1978) and United States v. Simmons, 503 F. 2d 831, 837 (Sth Cir.

1974), are to the same effect. In United States v. Mitchell,

385 F. Supp. 1190, 1193 (D.D.c. 1974), aff'd, 559 F. 24 31 (D.C.

Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed.

24 250 (1977), Judge Sirica ruled that if an unindicted co-

conspirator had been called as a witness for the defendant, the

testimony of that witness would be subject to the instruction that

it should be received with caution and scrutinized with care. The

accomplice instruction in E. Devitt and C. Blackmar, Federal Jury

Practice and Instructions §17.06 (3d Ed. 1977), includes the sug-

gestion that a jury be told that the testimony of an accomplice “is

always to be received with caution and considered with great care.”

As the authors point out in section 17.06, page 533, this instructic:

can be used whether the accomplice testifies for the prosecution

or for the defense.

-16<-

A variety of cases state that three policy reasons

support the cautionary instructions given when an accomplice

testifies: his testimony is of extreme importance, he has ad-

mitted his part in criminal activity, and he has a motive to lie.

These same reasons applied to Turchi, and although I did not tell

the jury that he had a motive to lie, I did explain that his testi-

mony should be looked upon with particular care because of its

significance and because he admittedly had been involved in

criminal activity. Of course, I did not stop there: I also told

the jury that Turchi's testimony alone could raise a reasonable

doubt or be substantive evidence of innocence. I told the jury

that although it could look for corroboration, it was not necessary

and that Turchi's unsupported testimony could bring about an ac-

quittal of any defendant for whom he testified. This provided

the "fair and balanced perspective as context for deliberation"

suggested by United States v. Lee, 506 F. 2d 111, 123 (D.C. Cir.

1974), cert. denied, 421 U.S. 1002, 95 S. Ct. 2403, 44 L. Ed. 2d 670

(1975). See also United States v. Gleason, 616 F. 24 2, 15 (2d Cir.

1979), cert. denied, 444 U.S. 931, 1082, 100 S. Ct. 1037, 1320, 62

L. Ed. 24 764, 767 (1980).

In a somewhat different context, the Third Circuit has

recently said a trial court should instruct the jury that it can

either convict or acquit on the basis of accomplice testimony.

United States v. Armocida, 515 F. 2d 29, 48 (3d Cir.), cert. denied,

423 U.S. 858, 96 S. Tt. lll, 46 L. Ed. 2d 84 (1975), citing Cool

v. United States, 409 U.S. 100, 103 n. 4, 93 S. Ct. 354, 356 nm. 4,

34 L. Ed. 24 335 (1972). Based upon these cases and United States

v. Stulga, 531 F. 24 1377 (6th Cir. 1976), a failure to give scme

instruction as to Turchi's testimony -- for example, as I did,

-l7-

that it “may be sufficient standing alone without corroboration"

to work the acquittal of the defendants who benefitted from it --

might well have been cited as plain error. The instruction I gave

was balanced and eminently fair.

Turchi complains, however, that I implied he was an

accomplice in the crimes charged in the bill of indictment and

thus impaired the requirement of proof beyond a reasonable doubt.

There was no such statement. ‘°) What I did say was that if Turchi's

testimony was believed, it showed he and Coppola were accomplices

in the commission of arson, which was exactly the basis on which

defense counsel said his testimony was of enhanced credibility.

I did not even suggest he was an accomplice to the crimes charged,

but only that his testimony required special attention. Turchi

argues, however, that since I told the jury that the testimony of

a claimed accomplice (Coppola) was to be received with caution and

weighed with great care and since I said that Turchi's testimony

was to be received with caution and weighed with great care, that

I was saying that Turchi was an accomplice. Logically and legally,

this argument is fallacious. Logically, the argument could only be

persuasive if the jury had been specifically charged that only the

testimony of accomplices -- and no other persons -- was to be re-

ceived with caution and weighed with great care. Of course, no

such instruction was given. The argument is untenable legally

(6) tt is true 1 said, “Just as the testimony of Richara Coppola

requires special attention in view of his being an accomplice,

so does the testimony of Ronald Turchi require special

attention.” Of course, I should have referred to Coppola

as being an accomplice if his testimony “is believed" --

or as “one who claims to be an accomplice” -- as I had before.

Though my characterization of Coppola as an accomplice was

erroneous, in view of what I previously had said about hin

and in view of what I said thereafter about Turchi, i= was

harmless error.

because it depends upon the accuracy of the claim that the "re-

ceive with caution and weigh with great care" instruction applies

only to accomplices. Such is not the case. Cautionary language ©-

the type used has been mandated by the Third Circuit for identific=-

tion witnesses under certain circumstances, United States v. Barbe:,

442 F. 24 517, 528 (3d Cir.), cert. denied, 404 U.S. 846, 958, 92 S.

Ct. 148, 327, 30 L. Ed. 24 83, 275 (1971), and for perjurers, Uni=-

States v. Margolis, 138 F. 24 1002, 1004 (3d Cir. 1943). In additior

it has been said, there is no significant difference between the

cautionary instructions to be used for accomplices and those for

immunized witnesses, United States v. Morgan, 555 F. 2d 238, 243

(9th Cir. 1977), or for informers, United States v. Gonzalez, 491

F. 24 1202, 1207 (Sth Cir. 1974). Such instructions should also ><

given, even though unrequested, as to the testimony of an addict-

informant, United States v. Kinnard, 465 F. 24 566, 572 (D.C. Cir.

1972) . ‘7)

In light of the many instances when an instruction of this

type may and should be given, there is no merit in the argument

that it was prejudicial here.

C. The Supplementary Instruction

All defendants object to the supplementary charge which

I gave when the jury reported that it was unable to reach any

cert. S, 96 s. ce. 359, 47 L. Ed.

(1979), the court criticized an instruction that the testimony

of a prison inmate should be carefully scrutinized because he

had been convicted of a crime. Nonetheless, the instruction

was not held to be erroneous. It must be noted that by reascn

of Pederal Rule of Evidence 609 this instruction would now

be too broad.

verdict with respect to any defendant. At that time, the jury ha:

been deliberating for a little less than ten hours. The objectic:.

is not to the fact that supplementary instructicns were given

but to their content. In essence, ‘®)r told the jurors to see

if they could agree on anything, it was an important case, they

should consult with each other, and should reach unanimous ver-

dicts if possible to do so without violence to individual conscience

I take it from that you mean that you believe that your

deliberations have reached a point where you feel that agr-..-

ment is impossible. Nonetheless, I'm going to ask you to

resume them. In doing so, I make this suggestion to you:

Pirst of all, if you have been unable to agree upon

certain matters that you turn to other matters to study

and try to find exactly where there may be agreement, ever.

if it's only a comparatively few points. In other words,

try to see where there is agreement. Sometimes when you fi: :

there is agreement on one issue it may lead you to agreemen~

on others. After you have found that there is that possi-

bility, or that impossibility, it may lead you to further

thoughts. So the first thing I want you to do is to see

whether there can be any agreement on anything at all, eve..

if it is only, for example, on matters that are not neces-

sarily determinative on all of the issues as to any defendiunt

or as to any charge.

Now, why don't (sic) I ask you to do this? Well, first

of all, as I'm sure you know without my telling you, that

this is an important case. It has been expensive in time, ‘n

effort and in money to both the defense and the prosecutior.

If you fail to agree on a verdict the case is left open anc

undecided. Like all cases it must be disposed of at some

time. There appears to be no reason to believe that anothc -

trial would not be costly to both sides, nor does there arc- :

to be any reason to believe that the case could be tried

again by either side any better nor anymore exhaustively

than it has been tried before you. Any future jury would

have to be selected from the same source from which you

have been selected.

The issues in this case you may feel are not necessaril:

easy, and I'm sure that anyone could understand why you fee”

that way. However, from all that I have seen of you you are

just as intelligent and just as capable of deciding these

Having heard these instructions, the jury continued its delibera-

tions and after about five hours, returned verdicts finding Morror

Turchi, and Cassello each guilty on 11 counts and not guilty on

eight counts, Kester guilty on nine counts, while William Fox and

Ts) toned

issues as would be any other jurors that could be impanelec

in this court. There is no special reason to believe that

some other group on some other occasion would find these

matters less baffling or the testimony anymore acceptable

to being resolved than you have found it. Therefore, if

you can decide these matters in good conscience it is your

conscientious duty to do so.

Now, of course, these things suggest themselves on bric<

reflection to all of us who have sat through this trial.

The only reason I mention them to you especially that this

may have escaped your attention because your time has been

occupied with viewing the evidence and with your discussio:-

with each other. There are matters, however, which along

with others and perhaps more obvious ones, remind us how

desirable it is that you reach a unanimous verdict if you

can do so without violence to your individual conscience.

I'm going to repeat some of the things that I said to

you earlier.

Remember that the standard in this case is that of reasc.-

able doubt and no other. If the Government has satisfied

you beyond a reasonable doubt of lt, you should find a

defendant guilty. If the Gove t has not satisfied you

beyond a reasonable doubt as to « defendant, that defendant

should be found not guilty. ?

As I have previously told you, during the course of your

deliberations it's your duty to cpbnsult with one another,

to exchange viewpoints and reach g¢greement if you can do

so without violence to individual judgment. Remember,

however, that any decision you reach must be unanimous.

That means that each juror must concur and agree in the

final conclusion to be returned to us here in court. In

the course of your discussions, however, do not hesitate

to re-examine your own views and to change your opinion

if you become convinced it is erron:.ous.

As I said, it's your duty to decide this case if you

can conscientiously do so and you should listen carefully

to the arguments of your fellow jurors. However, as I told

you before, you should not surrender your honest convictior

as to the weight or the effect of the evidence sclely be-

cause of the opinion of your fellow jurors or for the mere

se of returning a verdict to us. Although there mus<

consideration of all of the evidence on the

—H.. of all of you, in the final analysis, each of you

must decide each of these matters for himself or hersels.

os I'm going to ask that you return and resume your deliber:~

ons.

David DiStasio were found not guilty on the eight and nine counts

respectively which faced then.

Defendants contend that the supplemental charge was in-

correct and improper because it ignored an order of the Court of

Appeals in United States v. Fioravanti, 412 F. 2d 407 (3d Cir.)

cert. denied 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 24 88 (1969),

and approved in United States v. Alper, 449 F. 2d 1223 (3d Cir.

1971) cert. denied 405 U.S. 988, 92 S. Ct. 1248, 31 L. Ed. 2d 453

(1972) . §9) They also say it was prejudicial and coercive under

the rationale of United States v. Burley, 460 F. 2d 998 (3d Cir.

1972), because it emphasized the importance of the case and its

costs to the parties, thus suggesting the jury should consider

extraneous matters rather than the evidence in making its decisioz:.

An analysis of these allegations show they simply are

not so, that if there was error it was harmless, that the words

were not inherently coercive, and that the verdicts demonstrate

there was no coercion in fact.

not ts might have also

(3) Although they did do so, the defendants might have al ~—

cited Go t of Vir in Islands v. Hernandez, 476 F. 2d

791 (3a ete ITs)

In the first place, this was not an Allen ‘1°? charge be-

cause there was no suggestion that the minority should defer to

the opinions of the majority, the key element of such an iastrectio

This means that a host of cases which talk about the coercive effe-'

of an Allen charge are not applicable to the issues here. 22) gne

three paragraphs which the defendants say were coercive and pre-

judicial were taken from 1 E. Devitt & C. Blackmar, Federal Jury

Practice and Instructions, Section 18.14 (3d ed. 1977). Neither

these words nor any words like them were before the Third Circuit

in Burley, Alper, or Fioravanti. They have, however, been consic.-.

name is

164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.~

the Supreme Court approved a charge that was substantially

as follows:

{A]lthough the verdict must be the verdict of each

individual juror, and not a mere acquiescence in the

conclusion of his fellows, yet they should examine

the question submitted with candor, and with a proper

and deference to the opinions of each other;

that it was their duty to decide the case if they

could conscientiously do so; that they should listen,

with a disposition to be convinced, to each other's

arguments; that, if much the larger number were for

conviction, a dissenting juror should consider whether

his doubt was a reasonable one which made no impression

upon the minds of so many men, equally honest, equally

intelligent with himself. If, upon the other hand,

the majority were for acquittal, the minority ought

to ask themselves whether they might not reasonably

doune the correctness of a judgment which was not

concurred in by the majority.

(11) It is also true that many courts refer to any instructions

given to a jury that is deadlocked, or that the judge

may think is deadlocked, as an Allen charge, or sometimes

an Allen-type charge.

-23-

by other courts and have been found an appropriate way to

encourage jurors to pursue their deliberations toward a verdict,

if possible, so the expense and delay of a new trial will be

avoided. United States v. Robinson, 560 F. 2d 507, $17 (2d Cir.

1977), cert. denied 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 2d 49%

(1978), citing United States v. Bermudez, 526 F. 24 89, 100 (24

Cir. 1975) cert. denied 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed.

2a 793 (1976).'22) nese words were implicitly approved by the

Supreme Court in Kawakita v. United States, 343 U.S. 717, 72 Ss.

Ct. 950, 96 L. Ed. 1249 (1952). Though not explicitly addressed,

the Supreme Court said other matters were “either insubstantial or

were so adequately disposed of by the Court of Appeals that we

give them no notice.” Id. at 744, 72 S. Ct. at 966, 96 L. Ed.

at 1269. And indeed, the words in question, and the traditional

Allen instruction that jurors holding the minority viewpoint shouic

consider the logic of those in the majority, were before the

Ninth Circuit. See Kawakita v. United States, 190 F. 2d 506, 524

(9th Cir. 1951). A charge pointing out that “some jury some time

will have the duty to decide this case, and I hope that you, as the

jury in this case, will be able to decide this matter." (emphasi:z

supplied by Court of Appeals), as well as the Allen instruction

to the minority, were before the court in Fulwood v. United States,

369 FP. 24 960 (D.C. Cir. 1966), cert. denied, 387 U.S. 934, 87 S.

Ct. 2058, 18 L. Ed. 2d 996 (1967), where Judge Burger (now Chief

Justice) said such instructions were 4 carefully balanced method

Tia) See also Firth circuit Pattern Jury instructions, -nstructions

During Trial No. 6, reprinted in 1 E. Devitt and C. Blackmar,

Federal Jury Practice and Instructions, Section 18.14 (3d

Ed. Supp. 1979).

to remind jurors of their elementary obligations which they can

lose sight of during protracted deliberations. See also United

States v. Zicree, 605 F. 24 1381, 1390 (Sth Cir. 1979) cert. den

U.S. » 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); United

States v. Papadakis, 510 F. 24 287, 298-99 (2a Cir.), cert. denied

421 U.S. 950, 95 S. Ct. 1682, 44 L. Ed. 24 104 (1975); United Stea:>=

v. Ringland, 497 F. 2d 1250, 1253 (8th Cir. 1974); Hale v. United

States, 435 F. 2d 737, 739-40 (Sth Cir. 1970) cert. denied, 402 U.S.

976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971); United States v. Wyn,

415 F. 24 135, 136 (10th Cir. 1969), cert. danied 397 U.S. 994, 9°

S. Ct. 1133, 25 L. Ed. 24 402 (1970).

In the second place, the words in question were not coercive.

The danger in supplemental instructions is that a minority of the

jury may be persuaded against its will and thus the unanimity

rule diluted. The pressure usually arises from language which

suggests that the minority should reconsider its views, that a

verdict should issue within a short period of time, or that some

jurors are misbehaving by refusing to join an otherwise unanimous

decision. United States v. Cheramie, 520 F. 2d 325, 329-31 (Sth

Cir. 1975). Telling the jurors they had to agree was found to be

coercive in Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct.

1059, 1060, 13 L. Ed. 24 957 (1965). Jurors should not 5e cold

that a failure to agree would be regarded by the public as reflect-

ing upon the jurors’ intelligence or integrity, nor should they be

pressured by being told the issues are easy, the court has a back-

leg, and retrial makes no sense. United States v. Thomas, 449 F.

2d 1177, 1183-84 (D.C. Cir. 1971). Stubbornness in the jury box

should not be criticized. Powell v. United States, 297 F. 2d 313,

320 (Sth Cir. 1961). Saying that absolute certainty cannot be

expected may be construed as weakening the quantum or quality

of the proof required. See United states v. Silvern, 494 F. 2d

355. (7th Cir. 1973); United States v. Flannery, 451 F. 2d 880,

883 (lst Cir. 1971).

I told the jurors none of these things.

What I did say was that they had a duty to decide this

case if it could be done without violence to individual conscience

and I told them why. There is nothing wrong with a jury's being

told it has a duty to decide. In Fioravanti, supra, for example,

the trial judge told the jury, “It is your duty, however, to agree

if possible." 412 F. 2d at 414. The Court of Appeals found no

error in that comment, and to the contrary, recommended that if

jurors are instructed to consult with each other they be told,

"It is your duty ... to deliberate with a view to reaching an agrec-~-

ment if you can do so without violence to individual judgment."

412 F. 2d at 420.

Surely if jurors can be told there is a duty to decide --

not just the easy cases, but difficult ones, the ones that require

diligent, conscientious effort, there is nothing wrong with reminding

them that a particular case is important to those involved. I

reject the idea that jurors are too stupid to know that what they

do or do not do will have ar impact on society and on defendants.

And this includes failing to decide a particular case. The abili«-

of the judicial system to function is not served by turning away

but by facing -- not by deferring but by deciding -- not by ab-

dicating but by acting. There is nothing wrong with a jury's

being asked to continue its deliberations so long as it is clear

-26-

that each member has a duty conscientiously to adhere to his own

honest opinion and avoids creating the impression that there is

anything improper, questionable, or contrary to good conscience

for a juror to cause a mistrial by refusing to agree. Hale v.

United States, 435 F. 2d 737, 741 (Sth Cir. 1970), cert. denied

402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971).

A judge's warning that under no circumstances must any

juror yield his conscientious judgment makes use of even the Allen

charge proper and not coercive. United States v. Robinson, 560 ©.

24 507, 517 (2d Cir. 1977), cert. denied 435 U.S. 905, 98 S. Ct.

1451, 55 L. Ed. 24 496 (1978). I told the jurors the importance

of individual judgment six times. I said these matters should bs

decided if it could be done “in good conscience.” (para. 3); "if

you can do so without violence to your individual conscience”

(para. 4); “if you can do so without violence to individual

judgment” (para. 6); and “if you can conscientiously do so” (para.

I also said that “you should not surrender your honest conviction

as to the weight or the effect of the evidence solely because of thi

opinion of your fellow jurors or for the mere purpose of returnin-

a verdict to us ... in the final analysis, each of you must decid-

_ @ach of these matters for himself or herself." (para. 7) It is no

coercive to tell a jury to try to reach a verdict if shey are <s1-

they are not required to do so. Government of Virgin Islands v-

Gereau, 502 F. 2d 914, 936 (3d Cir. 1974), cert. denied 420 U.S.

909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975).

There was no coercion.

The instructions I gave did not contravene directions

given by the Third Circuit as an examination of its recent cases

plainiy show. ‘The leading Third Circuit case on the Alien charge

is Fioravanti, supra. There the trial judge had used the tradi-

tional Allen language directing jurors in the minority to distrust

their own judgment. Although the district court was affirmed,

Judge Aldisert said at 412 F. 2d at 420:

Hereafter, in this circuit, trial judges

are not to give instructions either in the

main body of the charge or in the form of

a supplement that direct a juror to distrust

his own judgment if he finds a large majority

of the jurors taking a view different from his.

Such an instruction will be deemed error, normally

reversible error. Conceivably, in very extra-

ordinary circumstances the error may be found so

inconsequential as to avoid the necessity of

reversal on appeal. But hereafter this court

will not let a verdict stand which may have

been influenced in any way by an Allen Charge.

In footnote 32 on the same page there was a suggestion

that if there is any disposition to instruct jurors to consult

with each other, that it be done in language which was then quoted.

I followed this language -- though not verbatim in telling the

jurors to consult with each other. See supplemental instructions,

paragraphs 6 and 7, N.T. 16-7 and 16-8.

Alper, supra, and Hernandez, supra, both reiterated what

had been said in Fioravanti, but did not go beyond it. Since I

used neither the language nor the precepts condemned in Fioravanti

and did use those recommended, its directions were not violated.

Defendants place their greatest reliance on United States v. Surls

460 F. 24 998 (3d Cir. 1972). There the trial judge received two

notes which said there was one juror who refused to deliberate be-

cause she felt the witnesses were not to be believed and bec: ise oc:

her understanding of reasonable doubt. With the matter in that

posture and after the jury had been deliberating for about four

hours, the trial judge had the jury brought back to the court rocm

and repeated his charge on reasonable doubt. de also reviewed she

testimony of identification witnesses indicating, at least i:.-

ferentially, that it seemed to be strong and persuasive. Finally,

he told the jury,

Another thing you should bear in mind is

this: If this jury cannot agree, the case

is going to have to be tried again. It took

almost a week -- did take a week -- and all

those witnesses are going to have to be called

back to vestify again. They will be subject to

examination, cross-examination, and so forth.

So, it is not an insignificant event when a

jury does not agree in a case like this. It

can produce great additional expense to the

government and additional -- well, I think I

have said enough. 460 F. 2d at 999.

Judge Hastie, speaking for the Court, said that if

reasonable doubt persists a juror's duty is to vote for acquittal

and that the possibility of a hung jury and retrial are not

relevant to that determination. He pointed out that the trial

judge had. failed to say that no juror should vote contrary to his

best judgment because of the judge's views. He also added that

there should be a clear statement of each jurce's responsibility

to exercise independent judgment.

As I have previously observed, my supplemental instruc-

tions repeated six times the admonitions that individual conscience

and judgment must prevail. Anything I said about retrial was mere

(13)

surplusage. My instructions did not review the evidence, as

was done in Burley, nor were they directed at one geison who was

TI3) As Judge Surger said in Fulwood v. United States, supra,

The statement that some other jury would have

to decide the case if this one could not was accurate

as a generality and, in any event, could have had no

coercive impact on the jury. If they already knew

what would likely happen if they deadlocked,it was

surplusage; if they did not know, this information,

far from being coercive, would have had «=he effect

of reducing the pressure on them to reach a verdict.

369 F. 2d at 963.

holding out for acquittal. The circumstances and the charge in

Burley simply bear no resemblance to the circumstances and the

charge in the instant matter.

Finally, the time that elapsed between the giving of

the supplemental charge and the jury's verdicts, and the verdicts

themselves, show that there was no coercion.

After receiving my instructions, the jury continued its

deliberations for a little more than five hours. This shows

there was ample time for thoughtful consideration and the absence

of coercion. United States v. Barash, 412 F. 2d 26, 31-32 (2d Cir.),

cert. denied 396 U.S. 832, 90 S. Ct. 86, 24 L. Ed. 24 82 (1969) (thre

hour lapse); United States v. Stewart, 513 F. 2d 957, 959 (2d Cir.

1975) (six hour lapse); United States v. DeStefano, 476 F. 24 324,

337 (7th Cir. 1973) (four hour lapse); United States v. Singletary,

562 F. 24 1058, 1061 (8th Cir. 1977) (one and one-half hour lapse).

On the other hand, a time lapse of a few minutes would show a

coercive effect. United States v. Rogers, 289 F. 24 433, 437 (4ti

Cir. 1961).

The verdicts themselves show the absence of coercion.

Morrone, Turchi, and Cassello were found not guilty of eight of

19 counts, while Fox and DiStasio were found not guilty on all

counts. See United States v. Pove, 415 F. 2d 685 (8th Cir. 1969),

cert. denied 397 U.S. 950, 90 S. Ct. 973, 25 L. Ed. 24 132 (1970).

II. Kester’s Additional Arguments

A. The Absence of Miranda Warnings and the Destruction

of Interview Notes

The first two reasons advanced by Kester for post-triai

relief grow out of testimony given by ATF Agent Harold C. Perlick

as to a conversation which he said he and Agent Robert Piccirilli

had with Kester on December 13, 1977. According to Perlick,

Kester made certain incriminating staterents. Kester first asseris

Perlick's testimony should have been suppressed because ng Mirand:>

warnings were given, and secondly, that the indictment against

him should have been dismissed because Perlick did not retain

his rough notes of interview as required by United States v. Vella,

562 PF. 24 275 (3d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.

Ct. 1262, 55 L. Ed. 24 779 (1978). See also United States v.

Niederberger, 580 F. 24 63, 71 (3d Cir.), cert. denied, 439 U.S.

980, 99 S. Ct. 567, 58 L. Ed. 24 651 (1978); United States v._

Harris, 560 F. 24 148 (3d Cir.), cert. denied, 434 U.S. 986, 98

S. Ct. 614, 54 L. Ed. 24 480 (1977); and United States v. Harrison,

524 F. 2d 421 (D.C. Cir. 1975).

The first issue, that concerning the failure to give

Miranda warnings, was previously raised by a pretrial motion to

suppress. An evidentiasy heasing was held. after which T entered

an order, incorporating findings of fact and conclusions of law,

and refused the motion. There is nothing I can add to that order.

It is attached as an appendix to this opinion.

Kester's second reason is somewhat ambiguously phrased

in his post-trial motions and brief. What he says is that Agent

Perlick should not have been permitted to testify about the

December 13, 1977, statement when it was determined his rough inter-

view notes had been lost or destroyed after a formal report of

interview was prepared. The problem is that the destruction of the

notes was revealed by the cross examination of Perlick only ater

he had testified as to his conversation with Kester. Since =

-3l1-

believe Kester's intention is plain, I shall treat his motion as

an assertion that Agent Perlick's testimony should have been

stricken or that the indictment should have been dismissed once

it was established that the interview notes had been destroyed.

In Vella, supra, the Court of Appeals statec explicitly

To avoid future misunderstandings, we speci-

fically adopt the precepts announced in caekes

260, 4

oe ee 173 U.S. App. D.C.

, as the law in this circuit, to-

wit, the rough interview notes of F.B.I. agents

should be kept and produced so that the trial

court can determine whether the notes should be

made available to the appellant under the rule

of #34 Bee 373 U.S. 83, 83 S. Ct.

1194, . Ed. 15 (1963), or the Jencks

Act.

562 F. 2d at 276. Although the language of Vella is obligatory,

Niederberger, supra, in construing it held that when there was no

bad faith by the Government and no specific pretrial request by

the defendant, the district court's refusal to strike testimony

and segesai to grant a new trial were not errors because even had

the testimony of the Government agent been excluded, there was

sufficient é@vidence to convict.

Vella specifically adopted the precepts announced in

United States v. Harrison, supra. Harrison, in turn, relied on

United States v. Bryant, 439 F. 2d 642 (D.C. Cir. 1971), which

Ed. 2d 215 (1963), to require that “in framing their rules for evi-

dence preservation, investigative agencies must define discoverable

evidence very broadly, including any materials that ‘might’ be

‘favorable’ to the accused.” 439 F. 2d at 652 n. 21. Bryant,

however, predated United States v. Agurs, 427 U.S. 97, 96 S. Ct.

2392, 49 L. EG. 24 342 (1976), which held that where there has

been only a general request for exculpatory material, ‘*4) or no

request at all, the proper Brady test for a reviewing judge is

whether the omitted evidence would create a reasonable doubt that

did not otherwise exist. This means the Government's omission to

provide information must be evaluated in the context of the entire

record. If there is no reasonable doubt about guilt whether or

not the additional evidence is considered, there is no justification

for a new trial. On the other hand, if the verdict is already of

questionable validity, additional evidence of relatively minor

importance might be sufficient to create a reasonable doubt. 427

U.S. at 112-13, 96 S. Ct. at 2402. Thus when a court reviews the

effect of a failure to preserve possible evidence, the broad rule

announced by Bryant must be consicered to have been modified by

Agurs and Niederberger. I conclude therefore, that if a Government

(14) in the instant case there was no “pretrial request for specific

evidence." See s, 427 U.S. at 104, 96 S. Ct. at 2398.

Kester did file a Pre Trial Motion in which he said:

6. ... the defendant hereby requests all copies

of any and all statements of the defendant, including,

but not limited to Grand Jury Hearings, interviews or

intercepted messages, telecommunications or memoranda,

the substance ef any oral statement which the government

expects to introduce in evidence, the Grand Jury testi-

mony of any and all witnesses whose information given

at any time during the investigation could be con-

sidered extulpatory and would assist the defendant in

the defense of the charges filed against hin.

The Government responded that it would comply with this re-

quest to the extent that the material requested existed.

There is no suggestion that the Government did not do so.

As previously stated, it was not until after Agent Perlick's

direct examination had been concluded that any request ‘for

his rough notes was made.

agent has failed to follow Vella, in the absence of bad faith on

the part of the Government, the appropriate test is whether the

notes that were not preserved would have created a reasonable doubt

which otherwise did not exist. ‘15)

In the instant case, there was no evidence of bad faith

or any improper reason for the destruction of the notes. Vella

was decided on September 19, 1977, less than three months before

Perlick's December 13, 1977, interview with Kester. From all that

appeared neither the ATF in general nor Perlick in particular was

aware of the Vella decision. In part, this may be attributable

to the wording of Vella, which addressed itself only to the F.5.I.

While it would be fatuous to contend (and the Government aces not

do so) that once the Vella rule had been made known to ATF, its

agents could destroy their rough interview notes, nonetheless, it

is entirely possible that ATF was less likely to know of Vella

because it was specifically directed to the F.B.I. In Harrison,

supra, it was recognized that a direction to a police department

differed from a direction to the F.B.I. Just as the court in

Harrison refused to attribute any bad faith to the F.8.I. for

destroying notes when only the police had been directed not to do

(IS) This is practically tne same balancing test announced for

pre-Bryant interviews:

(The court] should weigh the degree of negligence

or bad faith involved, the importance of the

evidence lost, and the evidence of guilt

adduced at trial in order to come to a determina-

tion that will serve the ends of justice.

439 F. 2d at 653, as quoted by Harrison, 524 F. 2d at 434.

so, 524 F. 2d at 434, I shall attribute no bad faith to Agent

Perlick or to the ATF, particuarly in view of the time sequence

here.

The possibility that Agent Perlick's rough notes would

have helped Kester is remote. Although he denied any culpability

in the fire at his Orthodox Street warehouse, Kester admitted that

he told Agent Perlick many of the things about which Perlick had

testified. (N.T. 13-166-74; 13-190-93) He claimed to have done

so because he had had seven or eight martinis earlier that after-

noon and was intoxicated. (N.T. 13-85) He was not totally sober

when the agent arrived. (N.T. 13-88) He was half lit (N.T. 13-92),

was under the weather, was drunk (N.T. 13-169), and was half drunk

(N.T. 13-195). In addition, he was scared and upset (N.T. 13-90,

91, and 195), the agents put words in his mouth (N.T. 13-91, 165,

and 167), he was afraid he was going to be beaten up (N.T. 13-175)

or have a stroke (N.T. 13-169), and he just said anything to get

rid of Perlick (N.T. 13-164, 166, and 174). However, he also testi-

fied that after receiving appropriate warnings and with his attorney

available to him, he appeared voluntarily ‘+®) and repeated to the

Grand Jury the things he had told Agent Perlick (N.T. 13-175, 182).

Kester argued at trial that the preservation and pro-

duction of Agent Perlick's rough notes might have been helpful

im impeaching Perlick as to the date he interviewed Kester (N.T.

(16) Had he not appeared voluntarily, he would not have been

subpoened (N.T. 13-178).

13-152; 171-73).‘*7) analysis shows, however, that while the notes

might have impeached Kester, it is highly unlikely that they would

have impeached Agent Perlick. Admittedly, on the date of the

interview, Agent Perlick served Kester with a Grand Jury subpoena.

On its face, this subpoena shows it was served on December 13, the

date shown on Agent Perlick's formal report of interview. Both

Perlick and Kester testified the interview took place on that date.

(N.T. 10-108; 13-82). It is unlikely Agent Perlick would have

put one date on the subpoena and another on his formal report of

interview. This is particularly true since the date of the inter-

view became significant only after Kester testified during trial.

The issue as to the date of ineesview came up in this

way. During cross examination at the suppression hearing, Agent

Perlick was asked if Kester had told him one of his trucks had been

destroyed “earlier that morning.” Perlick said he recalled being

told “something about an accident." (Hearing of May 22, 1979, N.T.

18) Kester then testified the accident had occurred that morning

(N.T. 47, 56), i.e., the day the agents were there. (N.T. 57) It

was partly because of the truck accident earlier that day that he

drank so many martinis. (N.T. 58) As he told the Grand Jury, he

was drinking heavily that day because "this truck thing upset” hin.

(17) Kester's post-trial briet suggests Agent Perlick may have

destroyed his notes because he had a personal reason to do

so if they contained Brady material since “without Kester,

the case would not have federal jurisdiction and Agent

Perlick's investigation would have gone for naught.” [I

consider this argument to be voreposterous.

He also asserts bad faith was shown because there was

no testimony about any ATF policy to destroy notes. The

short answer to this contention is that no one asked about

the matter.

(N.T. 60) Again at trial the matter of the truck accident was

originally brought up during Agent Perlick's cross examination

by Kester's counsel:

Q. «+. After this interview was over, sir, did

he say something to you about a truck accident?

A. I think he mentioned an accident.

Q. You think? Come on, you know he did, don't you? ...

Didn't he tell you that that morning when he had

come to work on the 13th of December he had been

told by one of his employees that a brand new truck

of his had run into a tree and totally destroyed it?

Did he tell you that?

A. I believe he did, yes, some words to that effect.

I don't remember specifically whether it was a new

truck, but I think he said there was an accident tha+

morning. é

Q. And he was very upset about it.

A. He said that, yes.

Q. And at lunch time that day he had gone out, had

lunch and drank martinis and had too many.

Didn't he tell you that?

A. 4 said he was drinking that day.

(N.T. 10-227-28).

Kester then testified that he was very distressed on

December 13, 1977, because a stupid driver had had an accident

with a brand new truck. (N.T. 13-82, 83, 85, 143, 144, and 157).

That was the reason he was upset that day (N.T. 13-145, 148), i.e.,

the day the agents came to interview him. (N.T. 13-150, 152)

There were no other accidents involving his trucks about then.

(N.T. 13-146)

However, when Kester was shown a report, containing

information he said he had provided to his insurance agent which

showed the accident had occurred on December 12, 1977, he began

to waiver about whether the accident and the interview were on

the same date. (N.T. 13-157) He then said he did not know the

date of the accident (N.T. 13-162), and finally, that on the day

of the interview, all he told the agents about the accident was

that the truck had been towed to his garage that morning. (N.T.

13-195) He then accused the Government of having originally said

the accident was on December 13 (N.T. 13-161), a charge that

quite simply was not true.

It was because of the question as to whether the

accident and the interview had been on the same date that Kester's

counsel wanted the original interview notes. It was obvious, how-

ever, from the time Kester's counsel first raised the question

during cross examination at the suppression hearing, Perlick had

not thought that what Kester may have said about the truck accident

was of sufficient importance to record it. If indeed there had

been no notation, the destruction of Perlick's notes was unimportant.

If, on the other hand, Agent Perlick's notes had had some notation

in this regard, they might have confirmed one of Kester's versions

of what occurred on the morning of December 13, 1977, but refuted

another. '28) wnat Perlick's notes might have said did not go to the

issue of guilt or innocence per se, but to Kester's credibility.

Of course, Kester's credibility was paramount, but the jury had amp s

opportunity to judge it from his extensive testimony. I conclude

at one Or another, the accident occurr

on a 13 and the truck was towed in that same morning,

the accident occurred on December 12 and the truck was towed

in on December 13, that he had not seen the truck before

lunch, that he was not sure whether he had seen it before

lunch (N.T. 13-82), and that he had seen <he truck before

lunch after all (N.T. 13-145).

-38-

that the missing notes would not have created a reasonable doubt

of Kester's guilt. ‘+9?

B. Jury Sequestration

Kester also argues that two errors were committed inso-

far as the jury was concerned; first, that it should not have been

sequestered, and second, the whole panel should have been excused

because one of the veniremen made a remark about a defendant.

The jury was sequestered on motion of the Government.

Although Kester contends he objected to the grant of that motion,

I do not remember that he did so and the record is silent in that

regard. ‘2°) assuming he did object, there is no merit in his posi-

tion. The case had had considerable pre-trial publicity and during

T13) My Conclusion would be the same even if Kester’s motion

was considered a specific, pre-trial request. The appro-

priate standard then is whether the suppressed evidence

Bat have affected the outcome of the trial: ene 427

-S. at 104, 96 S. Ct. 2398; DeMartino v. Wei urner,

616 F. 24 708, 710 (34 Cir. 1580); United States v.

OL SREEAES 615 F. 24 37, 47 (2d Cir.), cert. denied

7 P , 100 S. Ct. 2921, 64 L. Ed. 24 810 (1980).

With that standard as my guide, I conclude that the

production of Agent Perlick's notes would not have affected

the outcome of the trial. This additional finding is made

in light of such cases as United States v. Parker, 549 F.

24 1217, 1224 (9th Cir.), Cert. denied, 430 U.S. 971, 97

S. Ct. 1659, 52 L. Ed. 24 365 (1977), which make it clear

that it is up to the district court to assess the circum-

stances that exist at trial when interview notes have been

destroyed.

(20) Cassello joins in this assignment of error. I do not recall

that he objected when the jury was being selected -- and the

record is silent in this regard.

trial received press and radio coverage. The wisdom of hindsight

shows that it was a good idea to insulate the jury from news repo-<s.

During the trial, there was a fire in an old factory building, which

like Kester's warehouse, was empty. This fire received considera _e

press coverage and while there was no connection between it and tho

trial, the fact remains that if the jurors had seen newspaper

articles concerning it, they may well have reacted unfavorably to

the defendants. The sensitivity of the defendants to matters of

this sort was demonstrated during voir dire. At that time -- and

at the request of one of the defendants -- I asked the veniremen

Have you, or has any member of your family or

close friend ever been a fireman, or worked

Size department, for a fire marshall, or for

any fire-investigating body?

Had the jurors seen the articles about the fire, which

stressed the impact on the neighborhood, ‘*") the defendants would

now be doubtless contending the jury should have been sequestered. ‘**

TZI) The Philadelphia Daily News of July 30, 1979, devoted p. © to

the story. There was a three column headline, “Fire Destroys

Factory. Right above it was a picture over the caption,

“Horror shows on faces of residents as they flee the fire.”

There were two other fire pictures on the page and an addi-

tional picture of the fire commissioner of Philadelphia on

p. 14 to which the story was continued. The Philadelphia Bulle-

tin carried the story on p. 1. Attributing its information

to the fire marshall's office, it said, “the cause of last

night's fire was under investigation.” The Philadelphia [n-

quirer carried a large, three-column picture of the fire on

p. 1 and featured the fact that approximately 40 nearby resi-

dents had to be evacuated from their homes during the fire.

It too said that the cause of the fire was under investigaticn

by the fire marshall's office. So far as I could ascertain <=he

jury was not aware of the fire. (See N.T. 13-3-5).

(22) In inquiring about the matter, counsel for one defendant sai<

he “had some bad moments just watching the news” because so

much of it was devoted to arson and fires. (N.T. 12-12).

Jury sequestration is a matter for the exercise of the

district court's discretion. It is proper despite a defendant's

objection. The reason for this rule is plain; the public, as well

as the accused, has a substantial interest in having guilt or

innocence decided by a jury free from prejudicial influences.

United States v. Haldeman, 559 F. 24 31 (D.C. Cir. 1976), cert.

denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Bd. 250 (1977); Baker

Vs United States, 401 F. 24 958, 968 (D.C. Cir. 1968), cert. denied,

400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970); United States

v. Holovachka, 314 F. 24 345, 351-53 (7th Cir. 1963).

C. The Mafia Comment

Kester also contends the entire panel should have been

excused because one of the veniremen said, "It looks like the Mafia

is here." (See Partial Transcript, Voir Dire, July 16, 1979, p. 5).

I denied the defendants’ motions but did excuse the juror who had

made the offending remark. In addition, each member of the panel

was immediately questioned separately to see if any of them had

heard it. Only two had -- and there was no motion to excuse either.

One was struck by the Government; the other served as an alternate

juror but did not participate in the deliberations that lead to

verdicts. Having questioned all the members of the panel, I was

satisfied there was no prejudice and therefore permitted the selec =i

process to continue. See United States v. Giacalone, 588 F. 2d

1158, 1162-64 (6th Cir. 1978), cert. denied 441 U.S. 944, 99 S. Ct.

2162, 60 L. Ed. 24 1045 (1979) and cases there cited. The problem

-41-

is United States v. Pantone, 609 F. 24 675 (3d Cir. 1979), was far

more serious than that in the instant case. '23) There, during a ~*~:

dire respecting potentially prejudicial publicity which circulated

during the trial, one of the jurors revealed that another had said

it sounded as if all the defendants were guilty. The trial judge

immediately questioned the jurors, just as I did the entire panel.

In refusing to find error, Judge Gibbons speaking for the Court of

Appeals said,

The judge immediately held a corrective voir

during which all jurors stated that nothing

occurred which would influence the verdict

or their impartiality. The trial court is ob-

viously in a better position to observe the

impact of premature jury discussions of guilt,

and to make a considered judgment as to the ef-

fectiveness of a cautionary instruction. Our

consideration of the entire voir dire, which

suggests that the impact of the two remarks was

rather inconsequential, and of the promptness and

care with which the trial judge conducted the

inquiry, convinces us that his refusal to grant

a mistrial was not an abuse of discretion. Cer-

tainly the occurrence of the conversations re-

ferred to is not ground for an automatic mistrial,

and no showing of any likelihood of actual preju-

dice has been made on this record. See United

States v. Klee, 494 F. 2d 394 (9th Cir.), cert.

~ - $35, 95 s. ce. 62, 42 L. Ed.

2 (1974).

609 F. 24 at 679.

D. Suppression of In-Court Identification

Kester's last allegation is that his in-court identifi-

cation by Coppola should have been suppressed because there was a

reover, use of a wor @ “maria S not pre cia

per se. =nate? States v. Polizzi, 500 F. 24 856, 888 n. 54

(9th Cir. 1974), cert. ’ 9 U.S. 1120, 95 S. Ct. 802,

42 L. Ed. 24 820 (1975).

suggestive pre-trial photographic display. This requires consider:-

tion of two questions: first, were the photographic identification

procedures impermissibly suggestive, and second, if they were, under

all the circumstances did they lead to "a very substantial liklihcod

of irreparable misidsntification" in court. Simmons v. United St-=e:

390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 24 247 (1968).

"Short of that point, such evidence is for the jury to weigh.”

Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct..2243, 2254, 53 L.

Ed. 140 (1977).

At a hearing required by Kester's motion to suppress,

Coppola testified that in May, 1977, he and Turchi met the owner of

the Orthodox Street warehouse. He described him as being short, <4

light hair, dark glasses, and heavy set. Coppola then identified

Kester as being that man. On cross examination, Coppola explained

he and Turchi had gone to the warehouse at Morrone's direction to

get $5,000. that the owner would have for them. They arrived in

late morning or early afternoon, three days before the fire. The

man they met was waiting on the second floor, approximately 20 feet

from a window which Coppola estimated to be about four feet by eight

feet. While Turchi talked to the man, Coppola walked around the

second floor looking at the building. He was as far as 50 feet from

the man -- and also right next to him. He described the lightinc

as “bright enough to see to see around there." At one point,

Turchi called him over, handed him a brown paper bag, and told

him to count the money in it. He did so. Coppola said he looked

at the man directly, had a good, clear look at him, and the light

was bright enough to see the man. The three of them were on

the second floor together for about 15 minutes. Coppola never saw

him again until Agent Perlick showed him a group of photographs in

October or November, 1978. ‘*4)

Agent Perlick said he interviewed Coppola in February, 197

at which time he displayed a spread of photographs and asked Coppola

_to identify anyone that he could. Coppola recognized several, and

as to one of Kester, said it "looked like the individual who owned

the Orthodox Street building that he and Turchi met with." The

photographic display which Perlick s!:owed Coppola contained 17

pictures, eight of which were of individuals connected in some way

with this case. None of them, except the one of Kester, were of a

person who would have matched his physical description. My first

consideration, therefore, was whether the photographic display was

impermissibly suggestive as to Kester. Accordingly, I took into ac-

count that Coppola was shown 17 pictures and was told to select all

persons whom he knew. This was not the customary line-up type dis-

play where someone is asked to recall an observation made during an

emotionally charged event of limited duration and asked to identify |

person who victimized him. Here, Coppola's attention was not direct:

to the Orthodox Street fire, or to the possibility that a picture of

the man he said he saw at the warehouse might be among the group, or

for that matter, to any specific incident. Coppola had been involve:

in other fires and the ATF investigation was not limited to the even’

which preceded one arson but also related to matters which post-date

the fires. It is true that Coppola's own pictures were among the

(24) In response to a any es from the Government, Coppola

also said he saw the pictures in February, 1979.

group as were those of persons whom he knew well, including other

defendants in this case. It is also true, however, that one of the

pictures was that cf William Fox, whom Coppola had never seen, ané

Coppola made no identification of him. Based on all of these factor:

I decided that the show of photographs did not suggest to Coppola

that he should select the one of Kester and identify him as being

the owner of the building.

Next I considered the lighting in the warehouse, the fact

that Kester wore no mask, the 15 minutes during which Coppola could

observe Kester, the distance Coppola was from Kester, the absence

of any obstructions to his vision, the fact that he was paying

attention to Kester, the description he gave of Kester, the degree

of Coppola's confidence in his identification, and the fact that tha:

had been no prior failure to identify.

I also took into account, however, that there were certain

differences between the way Coppola expressed himself before me and

the way he stated matters to the Grand Jury. For example, before

the Grand Jury he said the warehouse was vacant and dark and that

he "did not get a real clear look at the owner because of the dark-

ness. However, I did observe that he was a grey-haired old man,

possibly in his 60s, fairly short, heavy set and I believe he wore

glasses." (N.T. 3-48). In his testimony before me, he said that

the light was bright enough for him to identify Kester. There were

certain discrepancies between his testimony and that of Agent Perlic!

as to the number of photographs he saw and when he saw them.

Coppola also said that the picture he saw did not refresh his recol-

lection as to the man he had seen in the warehouse (N.T. 3-49) and

that it did not influence his ability to identify Kester in court

(N.T. 3-7) . 25) prom all these circumstances, I conclude that even

if the photographic display had been impermissibly suggestive, the

Government's clear and convincing evidence showed there was an

independent origin for the in court identification. See Gilbert

v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178

(1967); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18

L. Ed. 24 1149 (1967); United States v. Zeiler, 447 F. 2d 993 (3rd

Cir. 1971).

Having considered the totality of the circumstances (N.T.

3 - 58-62), I determined that there was little chance that the event

described to me would have lead to an irreparable misidentification

in court. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243,

53 L. Ed. 24 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct.

375, 34 L. Ed. 24 401 (1972), United States v. Coades, 468 F. 2d 196

(34 Cir. 1972).

I therefore refused the motion to suppress. There was no

error. ‘#°)

Tz5) At trial, the Government did not seek to bolster Coppola's

in-court identification by any reference to his selecting

Kester's photograph. The matter was explored, however, on

cross examination.

(26) Although he filed no formal motion to this effect, Kester in

his brief contends he should have been given more time to asser

additional legal arguments. However, he took no exception <c

my order of August 10, 1979, which allowed him ten days after

the notes of testimony were filed by the court reporter to stat

additional reasons in support of his post-trial motions and

file his brief. The Clerk's docket shows that the notes were

filed on February 28, 1980. No request was made by Kester ‘or

addtional time until, by letter dated March 3, 1980, counsel

asked that the ten days allowed by my order of August 10, 1979,

not commence until he had actually received all the notes of

testimony. The court reporter's records show that counsel hac

received all the notes by March 5. Kester's brief was filed

om March 24, 25 days after the reporter filed the notes of

testimony and 19 days after Kester in fact had them. 3ecause

@ question arose as to Turchi's representation, cral arzgumen:

had to be deferred until June 6, i380. Correspondence shows

that all counsel were fully aware of chis soroblem, 3uy Ao <orma

or informal r St was made durinc she interim co fice any-

thing else on Xester's Sehals.

III. Cassello's Additional Argument

In Counts 10 through 17 of the indictment, Cassello was

charged with mail fraud growing out of the Blue Bell Bar fire.

Count 18 charged him with racketeering while Count 19 alleged

conspiracy to engage in racketeeving activities. The predicate

offenses charged in the last two counts were Cassello's partici-

pation in the Blue Bell Bar arson and the arson at the Archway

Tavern. Cassello contends that since he was found not guilty of

mail fraud and since two predicate offenses must be established

to support a conviction of racketeering or racketeering conspiracy,

his convictions on Counts 18 and 19 must be set aside.

Cassello is wrong. His being cleared on the mail fraud

charges cannot ne sasespeceed as a finding he was not guilty of

arson. Under the indictment and my charge to the jury the two

offenses did not go hand in hand. ‘7) I specifically told the jurors

that to warrant the conviction of any defendant on a mail fraud

count they, the jurors, had to be convinced beyond a reasonable

doubt of the existence of the scheme described in the indictment,

that the defendants were charged with mail fraud not arson, and

that since the scheme alleged involved the knowing participation

by William Fox, if he was not guilty of mail fraud that none of <he

defendants could be guilty of it. (N.T. 15-51, 54, 62, and 63)

Obviously the jury could have been convinced that Cassello parti-

cipated in the actual arson but may not have been convinced that he

participated in the scheme which the indictment described. For

(27) Even if they had, consistency in verdicts is not required.

’ . . 1974) .

example, the bill of indictment alleged that Fox had procured

the burning of the bar. The jury may have concluded that without

Fox's knowledge, his wife had made the arrangements or that Harry

Bassion had done so. Under those circumstances, the Government

would not have established the scheme it charged and the jury covlé

not have found Cassello guilty of mail fraud.

Iv. Conclusion

The defendants raised many other reasons in support of

their motions, but did not consider them worthy of briefing or

oral argument. Neither do I.

Finding no merit in any of the reasons advanced by the

defendants, I conclude their motions for post-trial relief must

be refused.

i

<

i

4

:

:

v. :

:

MICHAEL MORRONE 3

RONALD TURCHI 3

GATO™ CASSELLO :

NICHOLAS SPADEA :

WILLIAM :

:

:

AmD WOW, thir ue day of June, 1979, after hearing,

the pre-trial motion of Moderweil L. Kester to suppress 4 state-

ment is hereby refused, the court having concluded that it was

made voluntarily. tn connection with this order, the court sakes

the following findings: - °

(1) Om December 13, 1977, Agent Harold C. Parlick and

Agent Piccirilli, both of the Sureau of Alcohol, Tobacco and Fire-

arms, went to the office of Moderwell L. Kester at approximately

4:30 P.M.

(2) Agents Parlick and Piccirilli identified themselves

and then had a conversation with Mr. Kester during the course of

which they told him that they were investigating an arson at 4

building he owned. They showed him certain ghotographe of a grsur

of individuals, but he denied knowing any of chem. ‘They also sold

him that they thought the fire is question had been professionally

set, that they knew who the arsonist was, and that they could Link

him to that person. They also <old Mr. Kester =hat since <hey

were investigating an arson ring, they vould make any *soperat:on

on Sis past known to the court, although they could sexe 20 proaises

to hia.

(3) The agents Jelivered 4 subpoena =o Mr. Kester, requir-

iag has testimony before the Scand Jury.

(4) Thereafter, “tr. Sester sade =he aliegedly iacris.catia¢

APPENDIX

———_ em me

(5) Although the defendant had been drinking earlier

in the afternoon, he spoke in a normal fashion to the agents,

was coherent, logical, and reacted appropriately to what they

said.

(6) Mr. Kester’s will was not weakened by alcohol so as

to be overburne by the officers and he did not speak to thes

involuntarily. Se testified that sometimes when he bas as such

to drink, as he had had on OCecember 13, 1977, he says things that

he should not say. Se also said that the agents put words in his

mouth and that he told them what he thought they wanted to hear.

However, none of these statements, singly or in concert, amounted

to a credible statement on his part that his will had been over-

borne by the agents or that he spoke involuntarily.

(7) Qn three separate occasions whem the agents started

to leave, Mr. Kester stopped them so that he aight continue to

talk with thes.

(8) During the time that he spoke with the agents,

Mr. Kester was not in custody, he was not under arrest, his Sreedo=

of movement was not restricted in any way, and he did not say that

he did not wish to speak to the agents. Although ac one point he

spoke of the fact that be did not wish to give them further ia-

formation without talking with his attorney, prior to that tine

he 4id not say that he wished to speak to his lawyer and thereafter.

the agents asked him no Sore questions.

(9) At no time was Mr. Kester given the warnings <e-

quired in Miranda v. Arizona, 384 J.S. 436, 86 S$. Ct. 1602, 16 L. Ed.

24 694 (1966).

(LO) Me. Kester was scot subjected to custodial -aterso-

gation because he had not Seen taken ‘ato custody or othervise

deprived of his freedom of action in any significant way.

(Ll) *...(Plolice officers are sot required <o administer

Miranda warniags <o everyone whom they question. ‘or +s “ne requiren

ment of warnings =o Se imposed simply Secause <he questioning -axes

place in the stationhouse, or because che questioned person -s

one whom the police suspect. Miranda warnings are required only

where there has been such a restriction on 4 person's freedom as

to render him ‘in custody’. It was that sort of coercive environ-

meant to which Miranda by its terms was made applicable, and to

which it is limited.” Oregon v. Mathiason. ——

97 $. Ct. 711, 714, be Bd. 2d » (1977). (emphasis

in original). .

(12) The statements of Mr. Kester were made voluntarily.

In making this determination, I have considered all of the cir-

cumstances surrounding the giving of the statement as well as

the specific factors enumerated in 18 0.3.C. §3501(b). In this

cegard, the time between arrest and arraignment is not applicable,

the defendant knew the nature of the offense of which he was

suspected at the time, and he knew that he had the right to the

assistance of counsel, although he had not been advised of chat

fact. Se was sot advised, and he may act have known, that he was not

required to gake any statement and that any such statement could

be used against him, and he was without the assistance of counsel

during the period of his conversation with the agents.

(13) Insofar as the testimony of Agent Parlick and Mr.

Kester differed, I accept that of Agent Parlick. Mr. Kester was

forgetful, evasive, and not credible. In addition, statements he

made differed from prior statements which he had given under cath.

BY THE CouRT:

ly later NTS :

qea=—

-1-

IN THE UNITED STATES DISTRICT COURT

POR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

one

vs.

MICHAEL MORRONE, a/k/a Mike:

Morrone :

RONALD TURCHI, a/k,(a Ronnie:

Turchi :

GATON CASSELLO, a/k/a :

Junior Cassello :

NICHOLAS SPADEA, a/k/a :

wi Spadea :

DAVID DI STASIO :

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester 3

ORDER e

AND NOW, this 2T® day of October, 1980, the motion

of Michael Morrone for a new trial is hereby refused for the

reasons set forth in the foregoing opinion, and the attorney

charged with the prosecution of the defendant in this court

having filed a petition to have Michael Morrone declared to be

and sentenced as a dangerous special offender, provision for which

is made by 18 U.S.C. §3575, it is hereby ordered that

(1) A hearing on this petition shall be held on November

10, 1980, at 9:30 A.M., in Court Room 6A, United States Courthouse,

Philadelphia, Pa.

(2) The United States and counsel for Michael Morrone

may inspect in my chambers during regular business hours Michael

Morrone's presentence report, which was prepared by the office

of the United States Probation Officer. If either counsel for

the defendant or counsel for the United States intend to controvert

any part of the presentence report, notice of that intention shall

be filed in the office of the Clerk and served upon the Probation

Officer and opposing counsel on or before November 5, 1980, at

4:00 P.M.

(3) In connection with this hearing, the defendant and

the United States shall be entitled to assistance of counsel, com-

pulsory process, and cross examination of such witnesses who may

appear.

BY THE COURT:

.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

GATON CASSELLO, a/k/a :

Junior Cassello 3

NICHOLAS SPADEA, a/k/a :

Nicky Spadea :

DAVID DI STASIO :

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester 3

ORDER .

AND NOW, this QT day of October, 1930, the motion

of Michael Morrone in arrest of judgment is hereby refused for the

reasons set forth in the foregoing opinion, and the attorney

charged with the prosecution of the defendant in this court

having filed a petition to have Michael Morrone declared to be

and sentenced as a dangerous special offender, provision for which

is made by 18 U.S.C. §3575, it is hereby ordered that

(1) A hearing on this petition shall be held on November

10, 1980, at 9:30 A.M., in Court Room 6A, United States Courthouse,

Philadelphia, Pa.

(2) The United States and counsel for Michael Morrone

may inspect in my chambers during regular business hours Michael

Morrone's presentence report, which was prepared by the office

of the United States Probation Officer. If either counsel for

the defendant or counsel for the United States intend to controver+

any pact of the presentence report, notice of that intention shall

be filed in the office of the Clerk and served upon the Probation

Officer and opposing counsel on or before November 5, 1980, at

4:00 P.M.

(3) Im connection with this hearing, the defendant and

the United States shall be entitled to assistance of counsel, com-

pulsory process, and cross examination of such witnesses who may

appear.

BY THE COURT:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

MICHAEL MORRONE, a/k/a Mike:

Morrone :

RONALD TURCHI, a/k/a Ronnie:

Turchi :

GATON CASSELLO, a/k/a :

Junior Cassello :

NICHOLAS SPADEA, a/k/a :

Nicky Spadea :

DAVID DI STASIO :

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester :

ORDER .

AND NOW, this 277 day of October, 1980, the

‘motion of Ronald Turchi in arrest of judgment is hereby refused

for the reasons set forth in the foregoing opinion. The defendant

is hereby ordered to report for sentencing on November 7, 1980,

at 9:30 A.M., in Court Room 6A, United States Courthouse, 6th

and Market Streets, Philadelphia, Pa.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL NO. 79-71

:

vs. :

:

MICHAEL MORRONE, a/k/a Mike:

Morrone :

RONALD TURCHI, a/k/a Ronnie:

Turchi :

GATON CASSELLO, a/k/a :

Junior Cassello :

NICHOLAS SPADEA, a/k/a 3

Nicky Spadea 3

DAVID DI STASIO :

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester $

ORDER

AND NOW, this 27% day of October, 1980, the

motion of Ronald Turchi for new trial is hereby refused for the

reasons svt forth in the foregoing opinion. The defendant is

hereby ordered to report for sentencing on November 7, 1980,

at 9:30 A.M., in Court Room 6A, United States Courthouse, 6th

and Market Streets, Philadelphia, Pa.

BY THE COURT:

\ bj bla LoD

2 J Z.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

Turchi

GATON CASSELLO, a/k/a

Junior Cassello

NICHOLAS SPADEA, a/k/a

Nicky Spadea

DAVID DI STASIO

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester :

ORDER

AND NOW, this 27% day of October, 1980, the

motion of Gaton Cassello for new trial and/or arrest of judgment

is hereby refused for the reasons set forth in the foregoing

Opinion. The defendant is hereby ordered to report for sentencing

on November 14, 1980, at 9:30 A.M., in Court Room 6A, United

States Courthouse, 6th and Market Streets, Philadelphia, Pa.

BY THE COURT:

B ae Je

IN THE UNITED STATES DISTRICT COURT

POR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL NO. 79-71

:

vs. :

:

MICHAEL MORRONE, a/k/a Mike:

Morrone — 3

GATON CASSELLO, a/k/a :

Junior Cassello :

NICHOLAS SPADEA, a/k/a :

Nicky Spadea :

DAVID DI STASIO :

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester :

AND NOW, this 2177+ day of October, 1980, the

supplemental motion of Gaton Cassello for new trial and/or arrest

of judgment is hereby refused for the reasons set forth in the

foregoing opinion. The defendant is hereby ordered to report

for sentencing on November 14, 1980, at 9:30 A.M., in Court Room

6A, United States Courthouse, 6th and Market Streets, Philadelphia.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

GATON CASSELLO, a/k/a

Junior Cassello

NICHOLAS SPADEA, a/k/a

Nicky Spadea

DAVID DI STASIO

WILLIAM FOX, a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester 3

ORDER

AND NOW, this 3 1™ day of October, 1980, the

motion of Moderwell L. Kester for new trial and for judgment of

acquittal is hereby refused for the reasons set forth in the

foregoing opinion. The defendant is hereby ordered to report

for sentencing on November 14, 1980, at 9:30 A.M., in Court Room

6A, United States Courthouse, 6th and Market Streets, Philadelphia,

Pa.

BY THE COURT:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

NICHOLAS SPADEA, a/k/a

Nicky Spadea

DAVID DI STASIO

WILLIAM FOX,. a/k/a Bill Fox:

MODERWELL L. KESTER, a/k/a :

Lee Kester 3

ORDER

aww wow, this 21 aay of october, 1980, the

United States Marshal for the Eastern District of Pennsylvania

is directed to serve a copy of the order of October 27, 1980,

denying Michael Morrone's motion in arrest of judgment upon

Michael Morrone at the Philadelphia Detention Center.

BY THE COURT:

ub Abode Ao

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL NO. 79-71

vs. :

:

MICHAEL MORRONE, a/k/a Mike:

Morrone - :

RONALD TURCHI, a/k/a Ronnie:

Turchi

GATON CASSELLO, a/k/a

Junior Cassello

NICHOLAS SPADEA, a/k/a

Nicky Spadea

DAVID DI STASIO

WILLIAM FOX, a/k/a Bill Fox

MODERWELL L. KESTER, a/k/a

Lee Kester

7-7 © 68 © © © of of

ORDER

AND NOW, this 2 7& ay of october, 1980, the

United States Marshal for the Eastern District of Pennsylvania

is directed to serve a copy of the order of October 27, 1980,

denying Michael Morrone's motion for a new trial upon Michael

Morrone at the Philadelphia Detention Center.

BY THE COURT:

; ps.