Petition — Xheka v. United States
Supreme Court brief1983
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3u the
Supreme Court of the United States
OcTroBerR TERM, 1982
SADIK XHEKA and BEHA XHEKA
Petitioners,
Vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
SERPICO, NOVELLE, DVORAK,
& NAVIGATO, LTD.,
61 West Superior Street
Chicago, IL 60610
(312) 787-1600
ROBERT A. NOVELLE,
Counsel for Petitioners
August 6, 1983
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
QUESTIONS PRESENTED
Whether the decision below creates a clear conflict
within the various circuits of the United States con-
cerning the scope of 18 U.S.C. $844 (i).
Whether the Court erred in holding the conspiracy
open and ongoing because insurance proceeds had not
been recovered and allowing the co-conspirators tape
into evidence against the non-present defendant.
Whether the Petitioners were denied a fair trial and
due process of law by the prosecutors purposeful and
repeated suppression of favorable evidence to their
refuse.
lil
TABLE OF CONTENTS
PAGE
Teena csnidhessnersonereveveseevenecnees i
ao sdncrcesocteerssnnenee spovevorecees iii
EEL EE iv
ng csdcsckransenssvrssbesecncesosecshsecceses 1
JUPISGiCti On -.....eeeeneneesnseessnesesseccsneesssttecsnsesneecsnerssnnesnanesee 1
Constitutional Provisions and Statutes Involved ...... 2
Gs ES 2
Reasons for Granting the Wit ..0..........:::sscscseseseseseees 29
ES LT SEE 64
Appendix ........ SS AT ea App. 1
TABLE OF AUTHORITIES
Cases
PAGE
Anmtlorson vi UB. Db TO0.. BBB caccccivccceecoscoeneccitttpesrrecces 45
Brady v. Maryland, 373 U.S. 83 (1963) ..00000000........52, 59
California v. Green, 90 S.Ct. 1980 ..0.0..........cccscsssssserseeees 51
Dation v.-vetie, 6B Bee cc 47, 50
Fiswick v. United States, 67 S.Ct. 224 .0.0000.. 44, 45, 46, 47
Giglio v. U.S., 405 U.S. 83 (1972) ou... 52, 53, 59, 60, 62
Grunewald 0. S123, Ti Diilh Ge ctetkenccr es 47
Holy Trinity Church v. United States, 143 U.S. 457... 38
Brulewiteh v. UB. OB BiG. Fab ic cickcisicncnenns 45, 47
estungie- VCD, FE: Ae. Rs aiecrcitaccoetescendaneeecades 47
Mooney v. Holohan, 294 U.S. 103 (1935) ......0.0...........52, 61
Napuc v. Illinois, 360 U.S, 264 (1979) wee 52
National Woodwork Manufacturers Assoc. v. National
Labor Relations Board, 386 U.S. 612, 640 (1967) ... 28
Rewis v. U.S., 401 U.S. 808, 811 (1970) oe 38
U.S. v. Agrillo-Ladlad, 675 F.2d 905 (7th Cir. 1982)... 29
UA. v. Agure, BT UR: TOG TIC) icici 61, 62
U.S. v. Baranski, 484 F.2d 556, 566 (7th Cir. 1973) ... 35
U.S. v. Bass, 404 U.S. 336, 347 (1971) 0.000. 38, 39
U.S. v. Batchelder, 481 F.2d 626, 630 (7th Cir. 1978)... 39
Vv
PAGE
U.S. v. Birchfield, 486 F.Supp. 137 (N.D. Tenn.
| Rit ECAR EAL Sk ene en CORMIER Oe: 29, 33, 35
U.S. v. Campos-Serrano, 404 U.S. 293, 297 (1971) .... 38
U.S. v. Cardish, 143 F. 640 (D.C. Wise. 1906) ............ 31
U.S. v. Gere, 662 F.2d 1291 (9th Cir. 1981) ........ 29, 33, 35
U.S. v. Hepp, 656 F.2d 350 (8th Cir. 1981) «0.0.0.0. 29
U.S. v. Hewitt, 773 F.2d 1381 (11th Cir. 1981) .......... 29
es i. OL, Te AIRS ID eiisesscietesssarstcmnicmnncconedbaticsanteoncs 46
U.S. v. Isaaes, 493 F.2d 1124, 1147 (7th Cir, 1974) .... 39
iii Wea I EI MPU! MIDI scthociiveenpeinesciinisnidstintsonnigecteesbvneen 47
U.S. v. Poulos, 667 F.2d 939 (10th Cir. 1982) .............. 29
if ey UM OE A Re oenrn 40
Wong Sun v. U.S., 83 S.Ct. 407, 408 00.00... eccceoenees 44
Iu the
Supreme Court of the United States
Octroper Term, 1982
No.
SADIK XHEKA and BEHA XHEKA
Petitioners,
Vs.
UNITED STATES OF AMERICA,
Respondent,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
OPINION BELOW
United States Court of Appeals for the Seventh Circuit
affirmed petitioners’ judgments of convictions. The Opinion
of the United States Court of Appeals for the Seventh
Cireuit is unreported as yet and appears in the Appendix.
JURISDICTION
The Judgment of the United States Court of Appeals for
the Seventh Circuit was entered on April 6, 1983. The
Order of the United States Court of Appeals for the
Seventh Circuit denying the Petition for Rehearing was
entered June 7, 1983. This Petition for Certiorari was
filed less than 60 days from the date aforesaid. The juris-
diction of this Court is invoked under 28 U.S.C. $1254(1).
2
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
18 U.S.C. $844 (i)
18 U.S.C. $844 (j)
18 U.S.C. §81
18 U.S.C. $1153
18 U.S.C. $1952
18 U.S.C. $232 (5)
28 U.S.C. 2255
United States 5th Amendment
United States 6th Amendment
Federal Rules of Evidence 801 (d) (2) (e)
Federal Rules of Evidence 104 (a)
Federal Rules of Evidence 403
STATEMENT OF FACTS
John Jurman testified he was an engineer employed at
the Trans Union Building (Tr, 2-3). He testified that he
worked Sunday evening July 25, 1976, arriving around
11:25 p.m. (Tr. 4), because he had to check the electrical
vault in the basement kitchen (Tr. 5). He entered from
the lobby entrance with his master key (Tr. 5). He meta
large black man about 6’3” tall, bald headed and wearing
glasses (‘T'r. 6), whom he told he was the cleaning man
(Tr. 7). The man showed him some keys. Jurman went
downstairs with the man (Tr. 8). He was downstairs for
5 or 10 minutes and then left, the man following him back
upstairs to the lobby door (Tr. 8). Jurman let himself
out and the black man locked the door using a key (Tr. 9).
Jurman returned 5 or 10 minutes later again entering with
his keys and met the man again (Tr. 10), He returned
to the electrical vault and worked on the air conditioning,
leaving about 20 minutes later (Tr. 10). The black man
again locked the door from the inside with a key (Tr, 11).
He observed toweling of the kind used on rolls in wash-
rooms all over the floor (Tr. 12). Around 12:20, he
3
spotted the fire and pulled the fire alarm (Tr, 12-18).
During the afternoon of July 26, 1976, he viewed photo-
graphs and identified Wadie Howard as the black man
(Tr. 15).
On cross, he said there were three entrances to the build-
ing (Tr. 37) one entrance to the restaurant located on
LaSalle Street (Tr. 28), a garage entrance for vehicles
on Clark Street and an exit ramp located on LaSalle
Street (Tr. 39). On the weekends, the door is shut off and
only the security guard can electrically activate it with
a key (Tr, 40-41-63). When he went into the restaurant,
he directly passed the manager's office (Tr. 46-47), and
did not see anyone there. No one was upon the premises
except him and Howard (Tr, 48-49-50-51), He heard no
conversation and saw no light inside the office (Tr, 65-66,
76) and Howard had no opportunity to warn anyone down-
stairs that he was approaching (Tr. 67-68). Anyone leav-
ing the Bull and Bear would have to either exit the LaSalle
Street door to the street, exit to the lobby of the building,
or exit the basement to the garage (Tr, 56), but if they
exited the basement, the security guard would have to let
them out. He saw no one leave the Bull and Bear and
(Tr. 56) never saw Sonny there that night (Tr. 57).
Deputy Chief Meeker testified that he was in charge of
striking the fire. He got the call at 12:36 am. and
responded in two minutes (Tr. 90-91). He found ‘trail-
ers’’ around 150 feet long soaked in gasoline across the
kitchen, down a stairway into the disco area and two 55
gallon drums of gasoline (Tr. 95-96), Gasoline was spilled
on the floor, but there was no burning in the basement
(Tr. 95-96). Meeker testified that he inspected the provi-
sions, supplies, and liquor on the premises, and found them
to be sparse (Tr, 96, 97, US). He never looked into the
refrigerators, nor did he specifically investigate to deter-
mine what inventory was there (Tr, 106-108), His report
indicated the origin of the fire was in the kitehen whieh
4
was the full length of the resiaurant away from the LaSalle
Street door (Tr. 115-117).
Ciolli next testified he was a bomb and arson investiga-
tor and investigated over 6,000 fires including the Bull and
Bear (Tr, 181-1382). His assignment was to determine
the origin of the fire (Tr. 137). le found the fire most
intense on the west side of the restaurant on the ground
level closest to LaSalle Street (Tr. 158). He noted the
trailers soaked in gasoline and observed the two drums
of gasoline (‘T'r. 141-142), He examined for forced entry
and found pry marks on lobby entrance made by firemen,
but no pry marks on the LaSalle Street door (Tr. 145),
He examined supplies and liquor stored on the pretiises
and found very little on the premises (Tr. 142, 162, 164).
Analysis of the trailers and fluid samples taken, disclosed
that hydrocarbons similar to gasoline were contained there-
in (Tr, 149). He had a conversation with Sonny, relative
to the description of black man seen on premises and asked
him about the gasoline drums. Sonny denied knowledge
of either (Tr, 153, 154, 155).
On cross he admitted that Howard, was a well known
professional arsonist and his identity was suspect as soon
as Jurman gave a description (Tr, 167). No fingerprint
tests had been attempted upon the gasoline drums. They had
lettering upon them indicating food products as contents
and serial identification numbers (Tr, 185, 190-192), but
nothing was done to attempt to trace the drums (Tr, 195).
He examined the manager's office and found nothing miss-
ing or removed therefrom (Tr, 227). His investigation did
not disclose any financial problems which would indicate a
motive for the fire (Tr, 231),
Sandra Olson testified that at 11:30 p.m. on the night
of the fire she was parked across from the Bull and Bear
on LaSalle where the lighting was good (Tr, 251-252).
Around midnight she saw a large black man with black
glasses, bald headed, standing in the doorway to the
garage ramp looking up and down the street (Tr. 255-
)
256). He remained there a jinute and then walked north
toward Jackson and out of her view (Tr. 257). Around
15 minutes later the man returned and her attention was
called to him because she heard glass break and saw the
man run south on LaSalle to a parking lot next to the
* Trans Union Building and then east through the lot out
of sight (Tr. 258). She identified Wadie Howard as the
black man she saw (Tr. 259).
On cross, she acknowledged that she was parked direct-
ly across from the garage exit door of the Building (Tr.
264-265). She saw no cars exit while she was there (Tr.
268). The garage door was down and remained so the
whole time. (Tr. 269). When Howard walked north on
LaSalle she lost sight of him, but had a clear view of the
LaSalle Street door and he walked beyond that (Tr. 272).
He did not enter the door. She was certain that she heard
glass break first because her attention was aroused by it.
(Tr. 258-259, 274). It preceded the boom and she saw
Howard running before that (Tr. 274). When she saw
Hames, Howard was already either in the parking lot or
past it (Tr. 275). ‘The first breaking glass was around the
entrance door (Tr. 276) and at least two or more seconds
elapsed between it and the boom (Tr. 275). She told the
investigators that night he threw something into the
restaurant (Tr. 279). She still believes he threw an object
into the restaurant when the glass broke and then ran
(Tr. 280-281).
Investigator Williams testified he has been assigned
to the bomb and arson unit since 1971 (Tr. 291). At
5:30 on July 26, 1976, he proceeded to the scene to begin
his investigation. He noted the trailers and had seen
them at many fires before. They cause the fire to spread
(Tr. 295-296). The trailers upstairs were charred, but
the ones downstairs in the basement were not (Tr. 295).
He interviewed Jurman and Olson (Tr, 299). He eou-
cluded that the ovigin of the fire was at the LaSalle Street
door (Tr. 299-300) and stated it was probably started fron
6
outside the restaurant because of the hazard of igniting
the trailers inside might result in igniting oneself (Tr. 359-
360). He interviewed Sonny at the scene and determined
that he was home at the time of the fire and was called
to the scene (Tr. 304),
On cross, Williams acknowledged that although bomb
and arson has over 1,000 photos of known arsonists (‘I'r.
339), he picked Howard out and only selected the other
five pictures for lineup purposes (Tr. 340). Upon receiv-
ing the description and based upon the circumstances ot
the fire, he focused on Howard as the prime suspect (Tr.
341-343, 360). He knew Howard well, as did other arson
investigators, as a professional arsonist.
Next to testify was Wadie Howard. On July 1, 1976,
he was in a bar called Zorba’s at Wilson and Sheridan
Road with Chris Callas (Tr. 416). Callas told him that
he had a friend downtown that had a problem and that
Howard could probably take care of it (Tr. 418). The
name given to him was ‘‘Sonny'’—No last name and the
name Bull and Bear Restaurant at 111 West .ackson (Tr.
419). There was no meution as to the nature of the job
(Tr. 420). On July 3, 1976, a Saturday, at about 5:30
p.m., Howard went to the Bull and Bear (Tr, 421, 604) and
entered by the LaSalle Street door into the upstairs bar,
had a drink and asked the bar maid for Sonny (Tr. 421,
604). Sonny appeared at the bar (Tr. 421). Howard in-
troduced himself and said he was sent by Chris (Tr. 422).
Sonny said to wait a minute and went and made a phone
eall (Tr. 422), after which he returned and took Howard
on a tour of the restaurant (Tr, 425-424). He met Sonny's
brother Billy (Beha), aml a black cook (Tr. 424), but
they never did speak a word to each other (Tr. 425). Sonny
told him to look the place over and give him a price,
that he wanted the place totally destroyed (Tr. 425). Tle
quoted Sonny the price of $5,000 plus expenses (Tr. 426).
Howard asked for #400 expense money and received it from
Sonny (Tr. 427). Billy said nothing at all (Tr. 427).
Sonny and Howard agreed on a date for Howard to return
7
to pick up his first installiwent which was set Saturday,
July 10, 1976, at 5:00 pam. (Tr, 428, 605, 606, 608),
On that date, Howard returned to the restaurant around
9:00 pan again entered the LaSalle Street door to the
restaurant (Tr, 428). He sat at the bar, ordered a drink
and then went to the lower level where he met Sonny (Tr.
429). Sonny, Billy, and Lloward went into the manager's
office where Sonny gave Howard an envelope with $2,500
cash (Tr. 429), Only Sonny spoke and said the job must
be done before the first of the month because his bills
fell due (Tr. 430), Howard agreed (Tr, 481), Billy was
sitting at a desk and again did not speak at all (Tr. 431),
Sonny told Howard to return on July 21, 1976, to pick up
the final payment (Tr, 432),
On July 21, 1976, at 3:00 pan. he returned (Tr. 432)
had a drink at the bar upstairs and went to the lower level
to pick up his final payment (Tr. 432), He saw Sonny,
Billy and the black cook. Souny went into the office and
returned with the $2,500 (Tyr, 432), Billy just stood there
and said nothing (Tr. 433). Sonny told Howard this was
the last payment (Tr, 434),
On July 22, 1976, at 2:00 pan, Howard purchased two
o) gallon drums at a junk yard (Tr. 435). On July 23,
1976, he took the drums to 87th and Racine and filled
them with gasoline (Tr. 436). He drove to the building
arriving around 9:00 a.m. (Tr. 437). He parked the truck
on Clark and waited for Sonny (Tr. 438) and took the
drums to the basement of the restaurant (Tr. 439). Billy
and the black cook were there (Tr. 440) and the cook
joked saying he never saw cooking oil delivered in those
type drums (Tr. 441). Sonny told him to store the drums
in the wine cellar. Billy again said nothing (Tr. 442).
Sonny told Howard to return Saturday night July 24,
1976, to pick up a key to get into the restaurant (Tr. 443).
On Saturday, July 24, 1976, just before midnight he met
Sonny near the Bull and Bear on LaSalle Street got a key
to enter the restaurant (Tr. 447), Sonny reminded him
8
that the job had to be done before the first of the month
(Tr. 449),
On July 25, 1976, he drove to the Bull and Bear and
parked on Clark Street walking across the lot to the La-
Salle Street entrance (‘I'r. 450). He entered with the key
Sonny had given him (Tr. 450). The building engineer
came in on only one oceasion, not two. (‘Tr. 451). Three
other people were present in the Bull and Bear that eve-
ning in the oftice playing cards (Tr. 451-452), Sonny, Lilly,
and an old white haired man (Tr. $52). The last time he
saw Sonny was when he was spreading the towels to burn
the place and started to pour gasoline (Tr. 453). He saw
Sonny ritling the office, taking money and insurance papers
from the safe (Tr. 454). After he set the trailers, he car-
ried a lead towel to the LaSalle Street door (Tr. 455) took
a cigarette lighter, lit the end of the towel and stepped
out of the door (Tr. 455). He left the scene and heard a
boom and falling glass, but saw nothing (Tr. 445-446).
Around 5:00 p.m. July 26, 1976, he was arrested at his
house and told the arresting oflicers he worked at the Bull
and Bear as a cleaning man (Tr. 457). He spoke with his
wife Barbara Jackson, on July 26, by telephone regarding
bond money (Tr. 458). He never saw her at the station,
but told her he had an I.D. in a chest of drawers and to
take that and contact Sonny and tell him he had sent her
(Tr. 459). He saw her two days later on July 29, 1976, at
te Criminal Court Building, where they had a conversa-
tion in a jury room behind the Court (Tr. 459). She had
gotten only $200 and he needed $1,000 for bail (Tr. 459).
He told her to see Sonny again and get more money, which
she did and bailed him out (Tr. 460). About one week later,
he met with Sonny at Elliott’s Restaurant. (Tr. 460) A man
named John owned and managed Elliott’s (Tr. 461) and
when Sonny arrived all three of them went into John's office
(Tr. 461). Howard told Sonny he needed $2,000 and
Sonny told John to give it to him (Tr. 462),
Howard was tried and acquitted of the Bull and Bear
arson in State Court (Tr. 463). He was then indicted in
9
the Federal Court for the bull and Bear and Seville House
fires, was tried for the Seville House and acquitted (Tr.
466). In July 1979, he was in the M.C.C. awaiting trial
on the Bull and Bear charges unable to make bail. Ile
attempted to contact Sonny, but could not reach him (Tr.
467), so he called the government instead and began co-
operating (Tr. 467). He plead guilty to the charges on
August 1, 1979, and was sentenced to six months in M.C.C.
and 414 years on probation (Tr. 468). He received com-
pensation from the government for expenses in the amount
of $1,600 (Tr. 468). The only promise given him was that
the government would not oppose a reduction in bond so
he could be released (Tr. 469). He did have a conversation
with agents who told him of a monetary reward, he could
be recommended for if he cooperated and he hoped to
receive this reward (Tr. 470).
On cross, Howard admitted he was familiar with the
Bull and Bear and had been there many times before
July 1976, as an ice cream salesman stopping there twice
a week for almost two years (Tr. 555). He also stated
that he was sure he met Callas at Zorba’s in July, 1976
and had been there many times (Tr. 561-562). He denied
he ever burned down a restaurant before or after the Bull
and Bear (Tr. 569). He never told Callas he ever burned
down a restaurant and nobody had any reason to believe
he was involved in arsons prior to the Bull and Bear
(Tr. 570). Howard had received all his money up front
and that he was fully paid in July, 1976, (Tr. 575-576).
He changed his direct testimony and said that he nes or
discussed any money with Callas in July, 1976 (Tr. 577-
578, 595). After the fire, Callas never expressed any in-
terest in the Bull and Bear fire (Tr. 580).
For a long period, he had been employed by the Ladas
Family also known as Christopolos (Tr. 582). When he
had this alleged conversation with Callas and all during
July, 1976, he was employed by the Ladas Family. He
denied working in a gas station, in fact, the very gas
10
station at 87th Street that he filled the gas drums, and
was impeached by his testimony before Judge Korcoras.
He attempted to explain that he was a salesman not really
an employee of the station (Tr. 587-558, 637).
No specific date was set for the fire and he never told
Sonny or Billy he was going to burn it on evening of
July 25, 1976 (Tr. 625). He picked the night at random
and made no arrangements to set that as the night (Tr.
660). He denied even cleaning, painting, or lettering the
drums and claimed they were in same condition they were
at the junk yard (Tr. 631-632). The truck he used to
transport the drums was rented under a fictitious name
he did not remember. He had borrowed a drivers license
because he has not had one for years (Tr. 635). Le got
only one key and was told by Sonny that it fit every door
in the place (Tr. 649-650). He went into the Bull and
Bear on July 23, 1976, in the early morning hours to try
the key (Tr. 650). He entered about 12:30-1:00 a.m., no-
body was there, it was Friday night, Saturday morning
(Tr. 650). He went to the wine cellar and removed 12 to
15 cases of liquor and took them to his home (Tr. 651). He
did this all by himself and carried them out the LaSalle
Street door (Tr. 651). He admitted that he omitted it
from his July, 1979, statement and Grand Jury testimony,
and that he first told the agent ten days ago and the agent
took notes of this conversation—it was agent Gorecki (Tr.
651-652). He also told the prosecutors. He did not use
a key to get into the liquor room, because the padlock
on the door was open. Ile saw nothing wrong with taking
the liquor because he was going to burn it anyway (Tr.
658).
He denied seeing Sonny and Billy leave the restaurant
but admitted testifying before the Grand Jury that he did
see them leave (Tr. 680). He denied knowing when the
old white haired man left, but again admitted testifying
before the Grand Jury that he left before Billy and Sonny
(Tr. 693). He acknowledged that Billy and Sonny left
11
through the garage and he heard a car door slam (Ze.
693). Howard never left the building after he first en-
ered until he set the fire and was wot outside on LaSalle
Street around midnight. Mrs. Olson was lying or mistaken
(Tr. 698). He did not walk north on LaSalle around mid-
night (I'r. 699) and he did not break, nor throw anything
through the windows (Tr. 700-701). At least one minute
elapsed between the time he lit the trailer and the noise
(Tr. 702) and at that time he was 25 feet away from the
door (Tr. 704).
He worked for Simon Frangos and Anthony Angelos in
their strip joints and massage parlors (Tr. 707, 708, 709).
These men are known as bankers (Tr. 719) as were the
Christopolos Family. He denied that Sonny and Billy
were heavily indebted to the bankers, but admitted he
earlier said the \hekas were financially so tied up that
it was like they were working for someone else because
they had so many notes to pay (Tr. 715, 761). Bankers
are juice lenders and establish loans to purchase restau-
rants. When a guy gets in trouble they take the business
back if he cannot pay and sell it to the insurance company
(Tr. 722-723). The Christopolos’ paid him $1,600 per
month cash plus $500 per month cash bonus (Tr. 750).
George Christopolos was murdered in the summer of 1979
(Tr. 750). Prior to that, Christopolos always made bond
for him and he could count on Christopolos to help him
out (Tr. 751-752). When he went to the government for
help Christopolos’ made the bond for him on the Seville
fire (Tr. 770). Christopolos’ death was a factor in his
turning government informer (Tr. 769).
When arrested, he was transported to 51st and Went-
worth (Tr. 752). From 51st and Wentworth he was taken
to the County .ail. He never saw Barbara Jackson at 11th
and State (Tr. 757-758). He needed bond money even
though in the three week period prior to this arrest he had
received $5,400 cash from Sonny and $1,600 cash from
Christopolos and his bond was only $1,000 cash (Tr. 757).
12
He first saw Barbara Jackson in a Court lockup behind
the chambers (Tr, 759-760). That night or the next day
he made bond (Tr. 761-762). She brought the money down
and bailed him out (Tr. 763). She told him she had met
with Sonny a second time, had received an additional
$1,000 and had already received $200 before he was bailed
out on July 28, 1976 (Tr. 764).
He considered the lengthy penalty facing him when he
contacted the government, but he denied that he knew the
possible penalty (Tr. 776). He said he knew it carried a
prison term and he did not want to spend one more day
in jail (Tr. 777). He knew his substantial prior criminal
record would be used against him at sentencing, but he
denied that he was a four time convicted felon (Tr. 777).
He later admitted he was a four time felon and was aware
of the possible ‘‘substantial’’ prison sentence awaiting
him (Tr. 782). He received 5 to 14 years in 1947 for
robbery (Tr. 783). In 1949 he was again sentenced to 5 to
14 years in prison (Tr. 783). He was rearrested in 1966
for a felony and received two years probation. In 1971,
he was arrested for arson and attempted arson and plead
guilty thereto after the charges were reduced to criminal
damage to property (Tr. 784). He denied that he cooper-
ated because of this extensive record claiming he did so
only to make bond (Tr. 784). He only contacted the
government for bond reduction and not because of his in-
ability to hire an attorney since he already had a Court
appointed lawyer (Tr. 788). However, he testified earlier
that he did so, not so much for a bond reduction, but really
because he did not have money to defend himself on the
charge and hire a lawyer (Tr. 780-791). The only agree-
ment he had was that they would not oppose a bond reduc-
tion (Tr. 793). His punishment was never discussed and
no agreement Was entered into regarding sentencing (Tr.
795-796). The $1,600 he received was reimbursement for
expenses and before Judge Kocoras he claimed to have
received only $500 (Tr. 801-802).
13
He denied that Mr. Fleischman did anything on his be-
half regarding sentencing and merely recommended a jail
sentence commensurate with the crime (Tr. 805-806).
Howard finally admitted that the government did in fact
make a recommendation on his behalf and told the Judge
he had cooperated (Tr, 809-810).
Howard denied that he had committed any crimes since
his sentencing (Tr. $14). He knew that if you take some-
one’s money under a false promise to do something, it is a
crime (Tr. 817). He did take money from Mr. Sheridan,
but he denied that he took it under false pretenses (Tr. 817).
He claimed Sheridan merely gave it to him, he did not soli-
cit it (Tr. 817). He denied taking money in exchange for
doing an act he never intended to do and denied the money
was payment for him to do any illegal or criminal act (Tr.
S17). Sheridan had contacted him to beat up a Mr. Hall.
He did receive $250 and was to receive another $800 when
he put Hall in the hospital (Tr. 818). This oceurred while
he was on probation and after he promised Judge Bua he
would not commit any other crimes (Tr. 818). However,
he claimed the money was merely for expenses. Howard
said he was told by Agent Gorecki to go to see Sheridan.
He finally admitted that the agents told him not to go
see Sheridan (Tr. 863), but he insisted that this was after
he had already met with Sheridan and he denied the tele-
phone overhear related in the agent's report of the inci-
dent (Tr. 863-864). He admitted that six months after the
agents came back and confronted him about the money
(Tr. 865). The agents asked him why he defied their in-
structions not to contact Sheridan (Tr. 865). He has
taken money under false pretenses and committed such
crime hundreds of times in the past (Tr. 866-867). He
ix good at it and frequently takes money to burn down
restaurants never intending to do so (Tr. 866). He has
done this so often, he cannot remember how many times
and in his mind these were all criminal aets (Tr. 867), With
Sheridan, it was different because he only took money for
14
expenses (Tr. 868). He claimed the distinction was his
subjective justification of it all as to whether it was legal
or illegal (Tr. 868). He admitted that before Judge Koco-
ras on three occasions, he denied having committed any
offense or illegal act since his release, that the Sheridan
ineident had occurred within that time and he was aware
of it when he made those answers (Tr. 870, 871, 872, 874).
The reason for his answers, were that he subjectively did
not believe this to be a crime.
Howard was asked if any of the restaurants he took
money from eventually did burn down (Tr. 878), and he
responded that he could not remember any (Tr. 879). He
was reminded of his testimony before Judge Kocoras re-
garding the Quality Food Store (Tr. 879). He responded
that he never knew the Quality Food Store burned despite
the trial and he thought that only was an attempt (Tr. 880).
He admitted that he was asked to burn Andy’s West, after
first denying it, and that it also ultimately burned (Tr. 882-
4&3). The same was true concerning Pierson’s Corner (Tr.
s84), He further admitted that he related to the agents,
the identities of other arsonists and their specialties in
starting fires (Tr. 887) as well as the various methods
arsonists use including trailers and ‘‘toasters’’ and how
they operate (Tr. 888). However, later he changed this
and denied any knowledge of the term ‘‘toasters”’ (Tr. 898-
399), He was then shown the transeript wherein the word
touster was used but he said this was inaccurate he used
the term ‘* pizza oven’’ not ‘‘toaster”’ (Tr. 899-900). ‘* Pizza
Ovens’ are remote control devices like garage openers to
start fires. Steven Ganas demonstrated them to him in
ease be knew anyone who would buy some for arsons (Tr.
900-901 ).
He never heard of the term ‘‘trailers’’ before he entered
this Courtroom (Tr. 902) despite his earlier admissions
that he told agents about their use (Tr. 877, 888). In the
Bull and Bear, he used hand towels soaked in gasoline only
based upon what he had read about arsons in newspapers
15
and seen on TV (Tr. 902-903). He setup the Bull and Bear
with no expertise and no prior experience, but solely based
upon what he had read and heard in the media about such
arsons (Tr. 903). The Bull and Bear was not setup like
a professional job despite the preparations taken to spread
the fire (Tr. 905). He set the wicks outside the door,
not as a professional to avoid igniting himself, but just on
the gamble and guess that the fire would burn through the
door and ignite the trailers inside (Tr. 906). He admitted
viving the agents information on around 20 other fires be-
sides the ones already mentioned (Tr. 914). He denied
receiving many ollers to commit arsons, and was cross ex-
amined concerning his contrary testimony that a lot of
people contact him to commit arsons and he has a lot of
offers to commit arsons (Tr. 916-917). He could not ex-
plain why he gets all these offers if no one had reason to
believe he was an arsonist (Tr. 919). He still insisted he
never committed any arsons before or after the Bull and
Bear (Tr. 921).
The two meetings his wife had with Sonny preceded
July 28, 1976, when he was released from jail (Tr. 925).
He told the agents originally there was only one such meet-
ing at 159th and Kedzie (Tr. 926). However, that was
wrong (Tr. 926). Howard was asked if the last time he saw
Sonny was at this alleged meeting at Elliott’s (Tr. 927).
On direct, he testified to only one such meeting and said
‘t was the last time he saw Sonny (Tr. 766). However, he
changed his testimony at this time and now related a second
meeting at Elliott's claiming to have told the government
of this ten days ago (Tr. 927). The prosecutors, in front
of the jury, nodded in agreement with Howard. He ad-
mitted never mentioning the second meeting in prior testi-
mony (Tr. 946). He admitted that on direct, he testified
he last saw Sonny on August 3, 1976, at Flliott’s and that
all future meetings were to be at the Hinsdale Oasis (Tr.
ON). Tle was wrong and had forgotten the second meeting
despite the fact he told the government of it just a few
16
days earlier (Tr. 948-949). At the meeting in front of
Islami, he discussed the arson and John knew why Sonny
was giving Howard the money (Tr. 951-952).
Howard plead guilty to a reduced charge of arson and
attempt arson (Tr. 963), because his lawyer made a quick
deal with the prosecutor (Tr. 965). These incidents oc-
curred one night apart at a restaurant at 4785 North Mil-
waukee (Tr. 964). The only thing he did was deliver gas
to an alley because he was paid to do so, not by the owner
but by one of his competitors (Tr. 967-975). He had no
knowledge of an arson nor knowledge as to why anyone
would want him to deliver gas to the alley behind the res-
taurant (Tr. 967). Howard would do almost anything for
money; he has committed arson for money; he has lied for
money; and he has stolen for money (Tr, 984-985). He
denied that he has committed any other crimes not yet re-
lated to the jury (Tr. 994). He was asked as to whether
he paid taxes on the cash he earned from Christopolos for
at least three years and the money he received for various
illegal acts (Tr. 994-997) and whether he ever told the
government he never paid income taxes. He said the
government never asked him (Tr. 997). Howard was
never prosecuted nor his probation violated for tax evasion
(Tr. 998).
Howard, on redirect, re-affrmed his earlier testimony
that he told Callas he would give him a few bucks (Tr.
1040-5) and when he testified on cross examination to the
contrary, he was wrong (Tr. 1040-4). He did not see Callas
from 1976 to 1979 (Tr. 1040, 1748) and he never told
Callas what he did at the Bull and Bear (Tr. 1040-48).
Whereupon Howard was excused subject to being recalled
regarding the tape.
(The transeript is numerically out of order and picks
up at this point at page 1133 with the testimony of Shaban
Islami.)
Shaban Islami testified and he is also known as John
(Tr. 1133). He owned Elliott's Restaurant in 1975 and
17
1976 and knew Sonny and billy since 1966-67 (Tr. 1136-
1137). In the summer of 1976, he remembered a black man
came into Elliott's (Tr. 1141) who he could not describe
because he does not remember him (Tr. 1142). The man
came into his kitchen and John chased him out (Tr. 1143).
He was looking for a dishwasher’s job and John did not
need a dishwasher. He sat at the counter and had a cup
of coffee (Tr. 1143). Later Sonny came in and they talked
about the mortgage payment which Sonny looked after
because he had co-signed on John’s loan (Tr. 1143). He
mentioned to Sonny about the black man sitting at the
counter, that if Sonny needed a dishwasher, he was looking
for a job (Tr. 1411). Sonny talked to the man (Tr. 1144).
Ife did not give Sonny any money at that time, but did so
after the black man had left at which time he gave Sonny
around $1,000 (Tr. 1144). Sonny and John sat in the office
after the black man left (Tr. 1145). On cross examination,
Islami testified that the black man was never in the res-
taurant before that date, he never saw him since that date
and he was sure that he was only in there on one occasion
(Tr. 1160).
The next witness was agent Adair of the A.T.F. who tes-
tified that on November 20, 1980, he intervicwed Islami,
whereupon he told the agent that in fact the black man
upon entering the restaurant specifically asked for Sonny
(Tr. 1165). This testimony was neither in Islami’s Grand
Jury nor trial testimony.
Kenneth Malatesta testified that he was an assistant
State's attorney and was called to approve the filing of
charges against Howard regarding the Bull and Bear (Tr.
1168). He interviewed both Howard and Sonny. Sonny
answered all of his questions and said he did not know
Howard and he had not authorized him to be in the res-
taurant (Tr. 1168). Howard was at Area 1 located at 51st
and Wentworth.
Richard Bruggerman testified that he was the manager
of the Trans Union Building at the time of the fire (Tr.
18
1218) and he collected rents and maintained the building.
He knew Sonny and Billy and was familiar with their lease
(Tr. 1220-1221). The rent was based on the square footage
and due on the first of each month, plus escalation based
upon an allocation of building expenses and cost increases
over the base year which was due 30 days after billing
which occurred once a year, usually April 1st (Tr. 1223-
1224). The Bull and Bear was current on its rent (Tr.
1225-1226). After the fire, the lease continued but rent
abated until the building restored the premises to their
base condition. The building was supposed to do this within
30 days (Tr. 1225).
On cross, Bruggerman acknowledged that the fire in-
surance regarding coverage amounts were set in the lease
by the building requiring the Bull and Bear to carry the
coverage they did (Tr. 1232). He hired the security guards
who were on duty around the clock at all times (Tr. 1236-
1238). Security was responsible for admitting only author-
ized persons to the building when it was closed (Tr. 1240).
Anyone coming into a garage would have to enter with
clearance from a security guard (Tr. 1241). The Bull and
Bear did not have parking privileges and could not use the
garage (Tr. 1267). Bruggerman recalled that the building
frequently experienced difficulty and litigation over escala-
tion rent (Tr. 1243) and the Bull and Bear did disagree
over the square footage assessment (Tr. 1250). There was
a lawsuit over it and the dispute did not involve their
inability to pay, but a controversy over the propriety of
the amount (Tr. 1257-1258). There never were any forcible
entry and detainers proceedings instituted for any delin-
queney and there never was a suit to cancel the lease be-
cause of the nature of the operation (Tr. 1259-1262). The
loading dock was usually kept locked, but during times
when the building was open to the public it was frequently
left open and unattended and somebody could easily drop
off objects on the dock and leave them there unnoticed
(Tr. 1246-1247). The Bull and Bear had two different keys
19
for the restaurant doors. Une key fit all the inside doors
leading from the Bull and Bear to the lobby. The other
key solely fit the LaSalle Street door of the Bull and Bear
leading directly out to LaSalle Street (Tr. 1250-1251). The
Bull and Bear was open (Tr. 1262) Monday through I*riday
and !. day on Saturday, however, only the coffee shop was
open on Saturday (Tr. 1263). The upstairs lounge and the
LaSalle Street door were only open (Tr. 1265) Monday
through Friday and the lounge and LaSalle Street door
were locked all day Saturday (Tr. 1263). The Bull and
Bear had a disco in the basement lounge and it ran Friday
and Saturday evenings until 1:00 am. (Tr. 1261). When
Xhekas took over the lease, the locks were not changed
because the building needed the master key to service the
electrical and air conditioning vaults in the basement (Tr.
1266). If the locks had been changed he would have re-
ceived new keys which never oceurred (Tr. 1266).
Jean Thompson testified, she has known Howard and
Barbara Jackson for 30 years as a very close friend (Tr.
1278). In July of 1976, she knew of the arrest and after-
ward made some trips with Barbara Jackson (Tr. 1281).
The first trip was to 159th and Kedzie to a shopping center
where they waited in the car for 10 minutes until a man
came into the lot and circled their car a couple of times
(Tr. 1282). They then went into a K-Mart and the person
came into the store whereupon she left Barbara and the
man alone to talk (Tr. 128). They met for about 10
minutes (Tr. 1284) whereupon he left and they returned to
their car where Barbara showed her some money (Tr.
1285). She took a second trip a couple of weeks later to
79th and Western to a restaurant and sat together. Later
the man arrived whereupon she moved away from Barbara
over to a table (Tr. 1286). Barbara was at the counter
(Tr. 1287). She identified Sonny in Court as the man they
met (Tr. 1287). They met for 10 minutes, but she did not
hear the conversation (Tr. 1288). When they left, Barbara
did not show her any money (Tr, 1289),
20
The third meeting was at 57th and Cicero at Dominicks
and was a week or more after the second (Tr, 1289). They
parked in the lot and 10 minutes later a car pulled up next
to them (Tr. 1282). There were two men in the car and
although it was dark out, she could see it was the same man
(Tr. 1292). Barbara entered the other car, sitting in the
rear seat. She could not hear what was said and shortly
thereafter Berbara returned to their car and showed her
some money (Tr. 1293-1294). Barbara used the money to
bail Howard out of jail (Tr. 1294),
On the cross, she testified that Howard was still in cus-
tody at the time of the first meeting and they did not go to
the jail to see Howard that day (Tr. 1316), At the Grand
Jury, she had said at the second meeting she said she sat
at the counter and could not remember whether Barbara
and the man were inside or outside the restaurant (Tyr.
1322). Miss Thompson was sure Howard was still in jail
at this second meeting (Tr. 1325) and she was sure all
three meetings encompassed at least a three week period
(Tr, 1327). Howard was still in jail at the third meeting
(Tr. 1333) and when they went to see the lawyer (Tr. 1335).
She first spoke with the government just before the Grand
Jury appearance which was June 24, 1981, five years after
the event (Tr. 1337-1338). She never spoke to Howard or
Barbara about her testimony although she sees them reg-
ularly (Tr. 1338). Barbara never told her the government
had contacted her about these meetings (Tr. 1340), She
never saw the man before or after these meetings and
each was of short duration (Tr, 1342). Since the last meet-
ing in 1976 until her testimony in Court, she never saw the
man she identified (Tr. 1344). She could not recall if the
man she saw in 1976 had a mustache, but Sonny does not
have a mustache (Tr. 1346). No photos were shown her
at the Grand Jury and she never made an identification of
the man in her Grand Jury testimony (Tr. 1346), Miss
Thompson was asked whether the government had shown
her pictures to attempt an identification and she responded
21
yes, they showed her a book of pictures (Tr. 1347), Upon
receiving the surprise answer an immediate side bar was
requested and it was put of record again that no 3500
material was furnished regarding a photo lineup (Tr,
1350). \ voir dire examination regarding any suggestive
identification issues ensued (Tr, 1353) but the Court found
no constitutional violation,
Barbara Jackson testified that (Tr. 1414-1) on July 26,
1976, she was at home when Howard was arrested (Tr.
1414-2), She met with him at llth and State that same
night after he called her from the police station (Tr, 1414-3)
and talked in the presence of Officer Williams for 1/9 hours
(Tr. 1414-3). Waide told her to contact Sonny and gave
her a piece of paper with a telephone number and his LD.
to show Sonny (Tr. 1414-4). She contacted Sonny and set
up a meeting at a shopping center at 79th and Harlem (not
at 159th and Kedzie) near the K-Mart (Tr. 1415-7). She
went there with Jean Thompson and they entered the
K-Mart after the man had already entered (Tr. 1414-8,
1414-9). She met with the man and showed him the I.D,
with Howard's picture on it (Tr, 1414-10). She identified
Sonny as the man she met (Tr, 1414-11). She asked the
man for money to help Howard and he said he had nothing
to do with the arson, but would help Howard (Tr, 1414-12).
He gave her some money but she never counted it because
it was in an envelope (Tr. 1414-13). Two or three weeks
later, she met him again at 79th and Western at a restaurant
per instructions from Howard to get some more money (Tr.
1414-15), and again she went there with Jean Thompson
(Tr. 1414-16), They sat at the counter and when the man
entered, she and the man sat at a table and talked while
Jean stayed at the counter (Tr, 1414-16). (Vice-versa per
Thompson's testimony). She told him Howard needed more
money and she thought he gave her some more and he said
it was the last time he wanted to be contacted (Tr. 1414-16),
The third meeting occurred at 87th and Cicero at Dominicks
two or three weeks after and again she went with Jean
22
Thompson (Tr. 1414-21). 1t was dark out this time, she
got into a car with the man and received some more money
(Tr. 1414-22, 1414-23). She never counted this money
and gave it all to the lawyer. She never gave any of the
money to Howard (Tr. 1414-25). She then identified the
photographs she was shown in the photo lineup (Tr. 1414-
26).
On cross, she testified that this third meeting occurred
six or seven weeks after the first meeting sometime in
August or September, 1976 (Tr. 1414-28). The second
meeting was at least two or three weeks after the first one,
and she was sure Howard was still in custody at the time
of the second meeting (Tr. 1414-55, 56). Later she stated
that Howard was on bond at the time of the second meeting,
but she, not Howard, went because neither he nor Sonny
wanted any direct contact (Tr. 1414-58, 1414-59, 1414-69).
She never met Howard at the Criminal Court Building
(Tr, 1414-57) and never went to meet the man at 159th and
Kedzie (Tr. 1414-48). She never mentioned three meetings
to the agents and never mentioned the restaurant at 79th
and Western (Tr, 1414-63). She remembered this meet-
ing only after talking to Jean Thompson and finding out
that she had told the agents of three meetings. She
changed her testimony on June 24, 1981, when she went
to Grand Jury in the company of Jean Thompson and they
discussed it (Tr. 1414-98, 99, 100).
Howard was a frequent liar and often distorted the
truth leaving much out of what he related (Tr. 1414-72).
She knew he was involved in arsons and that he had been
arrested for arson at least two times prior to the Bull and
Bear (Tr. 1414-74). He lied to her about the 1971 arson
arrest (Tr. 1414-74). She acknowledged that in her state-
ments and Grand Jury testimony, she said the first time
she saw Howard after the arrest was one week later, where
he discussed with her going to see Sonny and he gave her
the I.D, and phone number (Tr, 1414-81, 82, 83). Her testi-
mony now was different. In her earlier statements, she
23
described the man she met as having a mustache and her
recollection now is that he did in fact have a mustache
(Tr. 1414-87). Neither Sonny nor his photo had mustaches
(Tr. 1414-87). In her earlier statements, she said she did
count the money and it contained $1,000 in cash in #100s,
$50s and #20s (Tr. 1414-88). That was correct and she
was wrong on direct. She did count it before she gave it
to the attorney and it was $1,000 (Tr. 1414-90). Although
she claimed the money from Sonny was not for bond, but
was for attorney's fees, her earlier statements said the
-econd meeting Was to get more money for bond (Tr. 1414-
92) and again this earlier statement was correct and she
was wrong on direct testimony (Tr. 1414-93). She stated
that what she referred to as the second meeting in those
« ‘ements was really the third meeting at 87th and Cicero
because at that time she had forgotten about the second
mecting at 79th and Western. So the meeting she was refer-
ring to was the one six weeks after the arrest (Tr. 1414-92,
93). She then changed her whole direct testimony and
stated she was wrong, Howard was still in custody during
these meetings. After the agents had her identify the
photos, she immediately called Jean Thompson and told
her she had initialed a photograph and that the agents
were on their way there for her to do so (Tr, 1414-21).
Miss Jackson said she did not know the address of the
Bull and Bear because she had never been there (Tr.
1414-114). She was shown a copy of her handwritten state-
ment and was referred to a portion of that statement where
she had written in the address 111 West Jackson Boulevard
(Tr. 1414-114). It was also then pointed out that the ad-
dress was absent from the typewritten version of the state-
ment (Tr. 1414-114). She stated she knew the address
in 1979, but only because the Bull and Bear had burned
down in 1976, and had never reopened. She could not
explain the fact that in 1979 she still knew the precise
street address of the restaurant (Tr. 114-115).
James Ruissis testified that he was an accountant special-
izing in restaurants and did the bookkeeping and aeccount-
24
ing for the Bull and Bear (Tr. 1048). He identified all
the financial documents and exhibits as the books and
records of the Bull and Bear (Tr. 1048-1055). For fiscal
year, 1973, the Bull and Bear lost $47,144.57 after depreci-
ation (Tr. 1061). For fiseal 1974, they lost $32,909.94 after
depreciation (Tr. 1062). For fiscal 1975, they made a profit
of $1,558.70 and for the first four months of 1976, they
lost $24,927.79 (Tr. 1063). On cross, he termed them as
paper losses for 1973, 1974, and 1975 and without the
depreciation and amortization write offs, there were small
profits (Tr. 1077-1078). Most restaurants operate with
paper losses (Tr. 1079). In addition to an already heavy
debt structure $35,000 in additional improvements were
made by the Xhekas in 1975 and this substantially contrib-
uted to the loss and cut into profits about $17,000 per
year (Tr. 1091). As for 1976 figures, the downtown res-
taurant business was cyclical and these months were tradi-
tionally poor months (Tr. 1086). Also the Bull and Bear
was a cash basis taxpayer and any large expenditures
during those months would distort the profit picture and
indicate a substantial loss for that period, only to balance
out later in the year when expenditures were lighter (Tr.
1090-1091). There were no cash flow problems and all debts,
bills and taxes were being paid and serviced out of current
receipts (Tr. 1083). The drop in employees at the Bull
and Bear occurred when Swifts moved out of the building
and closed the 18th floor restaurant for their employees
run by the Bull and Bear (Tr. 1087).
Peter Kilchelman testified and he is an attorney (Tr.
1100) and handled litigation between the building and the
Bull and Bear over the lease in 1975-1976 (Tr. 1101).
There were three separate leases covering the various areas
of the Bull and Bear and total rent was $5,106.50, per
mouth plus escalation rent (Tr. 1102). The escalation rent
for 1975 was due in May 1976 and was not paid in the
amount of $9,690.91 (Tr. 1102) and the August rent was not
paid (Tr. 1108). The escalation rent was ultimately paid,
25
but the monthly rent went to suit and was ultimately set-
tled (Tr. 1104). At the time of the fire the monthly rent was
current and only the escalation was due (Tr. 1108) and the
amount billed was only $4,831 for 1975 and was erroncously
sent to Emil Cole and not the Bull and Bear in May.
The lessor did not fix the premises as called for by the lease
until November, 1976 and really the Bull and Bear did not
owe rent on those damaged premises until that was done
(Tr. 1176).
(At this point the transcript returns to page 1415 the
voir dire of Howard.)
Qn the voir dire, Howard saw Callas six months after the
fire (Tr. 1418) and he saw Callas a number of times at
the Peanut Barrel between 1976 and 1979 taped conversa-
tion (Ty. 1418). They never talked about the fire, money,
or the insurance proceeds on any of these occasions (Tr.
1418). They probably talked about his arrest, but he never
diseussed the Xhekas with Callas (Tr. 1419). Howard also
saw Callas at the Electra Lounge a number of times before
1979 and again never discussed any aspects of the fire with
him (Tr. 1420-1421). There were at least six or eight
meetings (Tr. 1425). Callas knew of his arrest because it
was common knowledge (Tr. 1422). Insurance proceeds
were never discussed (Tr. 1426) and were first discussed
when Howard brought it up on the tape recording (Tr.
1427). The first mention regarding the ‘‘couple of bucks”’
~ince 1976 was the taped conversation and Callas never
asked for nor inquired about his money in the interim (Tr.
1427-1428).
Agent Gorecki was then recalled to testify regarding his
wiring up Howard for the July 1979 taping and the chain of
custody of the tape recording and cassette copies thereof
(Tr. 1458-1462). He admitted on cross examination that on
a number of occasions, Howard lied to the investigating
officers (Tr. 1499).
Wadie Howard was recalled to testify to the cireum-
stances surrounding his taped conversation with Callas and
26
thereafter the tape itself was played for the jury a number
of times (Tr. 1430-1439). Thereafter certain stipulations
were read and both sides agreed that all impeachment
concerning prior inconsistent statements were perfect, as
if the party taking those statements were called to testify
to the statements contained therein (Tr. 1515). The govern-
ment then rested,
The first defense witness was Nick Kotsimitis who pur-
chased and owned Zorba Lounge from 1973 to 1975 (Tr.
1532). On July 1, 1976, he did not see Howard and Callas
at Zorba’s because that would have been impossible since
Zorba’s was closed and the building was demolished in
November or December of 1975 (Tr. 1533-1534). Chris
Callas worked at Zorba’s prior to 1973, before Nick bought
Zorba’s but had not worked there since Nick bought the
place (Tr. 1534).
Nick knows Wadie Howard and met him in early 1974,
right after he bought Zorba’s (Tr. 1585). In early 1976,
on a couple of occasions, he came into DeMars to see Nick
and asked him if Nick was interested in torching the Pea-
nut Barre! (Tr, 1536-1537). Howard said that if he woutd
come up with some money, Howard would do the job (Tr.
1537). The Callas’ owned the Peanut Barrel. Howard was
a professional arsonist who frequently told Nick how to
start fires, burn down restaurants, transport gasoline and
things like that (Tr. 1540). On one occasion, Howard told
Nick he went all the way to Canada to torch a place (Tr.
1541). Howard also told him he torched a place in Wau-
kegan (Tr. 1555). Nick said you can tell the way a guy
talks when he is a professional and he knew Howard was a
professional and for that reason was afraid of him (Tr.
1555). He would never go to the police on Howard be-
cause of this fear and the police would not help him when
Howard got him in the alley to beat his brains out (Tr.
1555). Howard got him for $120. He did not have to
threaten, he was very persuasive just by looking at you
(Tr. 1555).
27
The final important defense witness was Imaculotta Baki,
who testified that from January 1976 and July 1976, she
was the bookkeeper for the Bull and Bear and worked
downstairs in the manager's office (Tr. 1658). She worked
five days a week 9:00 a.m, to 5:00 p.m. except Tuesday she
worked 9:00 a.m, to 8:00 pam. (Tr. 1659). At the time that
she also worked one Saturday per month (Tr. 1659-1660).
During the weekdays she would work from 9:00 a.m. to
11:00 a.m. in the manager's office and at 11:00 a.m. she
would go upstairs until 2:00 p.m. to help the hostess with
the lunch traffic (Tr. 1660). After 2:00 p.m. she would go
hack downstairs to the office and resume her bookkeeping
until 5:00 p.m. In addition to Sonny and Billy, Sabri was
on the premises every day and they were the owners (Tr.
1661). Billy would come to work around 11:00 a.m., Sonny
ut 10:30 a.m. and Sabri at 9:00 a.m. (Tr. 1662). The Bull
and Bear was open upstairs from 11:00 a.m. to 9:00 p.m.
Monday through Friday (Tr. 1663) and the upstairs lounge
Was never open on Saturdays (Tr. 1663). The LaSalle
Street entrance to the upstairs lounge was kept locked on
Saturdays (Tr. 1663). Gn Saturday vou had to enter the
Bull and Bear through the lobby door, sign in by the
security guard and then enter the restaurant (Tr. 1664).
When she worked Saturdays, she would arrive at 2:00 p.m.
and leave around 4:30 p.m. (Tr. 1664). She recalls work-
ing the Saturday before the fire (Tr. 1665).
She never saw a big black man with Sonny or Billy in the
office or around the premises (Tr. 1666). She was con-
tacted by the government two years ago, regarding this
very thing and she gave them a statement to that effect
(Tr. 1666). The government showed her a photograph of
a black man who was bald and wore black rimmed glasses
and asked her if she recognized him or ever saw him in the
Bull and Bear (Tr. 1667). She told them that she never
28
saw that man in the Bull and Bear and she never saw him
before in her life (Tr. 1668). She identified Agent Gorecki
as the man she talked to (Tr. 1668). She did not know
the Xhekas before her employment and had not seen them
since the fire (Tr. 1668). On cross, she stated she knows
the meeting with the black man never happened for a fact
and not in the manager's office where she worked (Tr.
1672).
Stipulations were then read into the record. Exhibit 9
was the County Jail records showing Howard was re-
leased on a $10,000 bond $1,000 cash on July 28, 1976 at
9:30 p.m. on the charges of arson. Exhibit 10 was the
arson investigation report ordered by the Trans Union
Building showing the fire had three separate disassociated
origins (Tr. 1680-1687). Then the defense rested.
29
REASONS FOR GRANTING THE WRIT
(A)
THE DECISION BELOW CREATES A CLEAR CON.
FLICT WITHIN THE VARIOUS CIRCUITS OF THE
UNITED STATES CONCERNING THE SCOPE OF 18
U.S.C. §844 (i).
Various circuits have split and issued contlicting opinions
as to whether common law arson by fire is included within
the scope of federal jurisdiction pursuant to 18 U.S.C.
S844 (i).
Compare U.S. v. Agrillo-Ladlad, 675 F.2d 905 (7th Cir.
1982) (Cites as authority in the case at bar) (7S. v. Hepp,
6066 F.2d 350 (Sth Cir. 1981), U.S. v. Poulos, 667 F.2d 93
(10th Cir. 1982), U.S. v. Hewitt, 773 F.2d 1381, (11th Cir.
1981), and counter holding in (7.8. v. Gere, 662 F.2d 1291
(9th Cir, 1981), U.S. v. Birchfield, 486 F.Supp. 137 (N.D.
Tenn. 1980). Indeed the statute has recently been amended
to include the word ‘‘fire’’ and cure the defect raised
herein. For this reason, this court should consider
this case to clarify the question and remove the conflict.
The 9th Circuit in Gere supra correctly perceived the
scope of 18 U.S.C. $844 (1) and found federal jurisdiction
lacking over common law offenses of arson for profit.
In the case at bar, the government has failed to prove
the use or intended use of explosives as contemplated by
Congress in enacting the statute. Stated quite simply,
while the government may have presented evidence of an
arson or attempt arson violative of state statute, it did
not prove a violation of 18 U.S.C. sS44 (1) and (j).
The defendants were originally charged in Count I with
conspiracy to damage or destroy the Bull and Bear Res-
taurant with the appropriate interstate commerce allega-
tions. Count II of the original indictment charged them
with the substantive offense. ((.L. Ree. 1) That indict-
ment was superseded with an identical indictment in the
same two counts, except for the addition of the following
critical words, omitted in the original indictment:
30
‘‘by means of an explosive as defined by Section 844(j)
Title 18, United States Code."’
(C.L. Ree. P. 5)
Hence initially the defendants were charged in classical
language with a state arson offense for which there clearly
is no federal jurisdiction and there was a later attempt to
amend that charge to include allegations which might have
brought the defendants conduct within the purview of the
federal statute. No specificity or allegations are contained
in the indictment setting forth the nature of the explosive
device i.e, an incendiary device, or a chemical compound
ete., but it is clear in the government's response to the
defendants’ motion in arrest of judgment and motion to
hold in abeyance that they rely on either or both of the
above alternatives (CR 118 P. 2).
The evidence in this case offered by the government to
support these charges in essence resolves down to the use
of gasoline soaked trailers and gasoline poured through-
out the premises, and contained in drums for the purpose
of rapidly spreading the fire, which was ignited by a hand
held cigarette lighter. In this context then the issues
presented, based upon the dual theories argued by the
government are as follows:
1. Is gasoline used as an accelerant to set a fire, a
‘‘chemical compound within the meaning of $844
(i) and (j)”’
2. Is a gasoline soaked trailer and/or container an
‘incendiary device’’ within the meaning of § 844
(i) and (})?
For the purposes of § 544 (i) and (j), there is an obvious
distinction between arson and the damaging of property
by means of an explosive. .\t common law, arson was
merely the malicious burning of the property of another
4 Blackstones Commentaries, Section 220. However, states
by statute have broadened that definition to include ex-
plosives. (Conseouently, the Illinois Arson Statute pro-
vides that a person commits arson who, by means of fire
31
vr explosives, knowingly damages any real or personal
property.
The federal statutes deline arson solely with regard to
federal jurisdiction limited solely to territorial considera-
tions. See 18 U.S.C. § 81 and 18 U.S.C. § 1153.
For purposes of the above, arson was limited to the
common law definition in that a dwelling house had to be
the object thereof. United States v. Cardish, 143 F. 640,
(D.C, Wise. 1906). By virtue of a 1966 statute, the defini-
tion was changed to conform to that of the State within
which the Indian lands are located. More recently, the
distinct offense of arson was recognized when Congress
adopted 18 U.S.C. 1952. In subsection (b), thereof, un-
lawful activity was defined to include arson in violation of
the laws of the State in which it was committed or of the
United States.
Thus it is apparent that arson—the burning of property
is a distinct independent recognized criminal act, with the
primary emphasis on the burning. Indeed in the case at
bar itself, the activity charged was the subject matter of
State prosecutions.
Furthermore, the language of Section 544 (i) and (j)
are unambiguous. Arson is to be distinguished from the
use of explosives prohibited by $844. The definition of
explosive is provided in 18 U.S.C. § S44 (j):
‘*For the purposes of subsections... (1) of this see-
tion, the term ‘explosive’ means gun powders, powders
used for blasting, all forms of high explosives, blast-
ing materials, fuses (other than electrie circuit break-
er), detonators, and other detaining agents, smoke-
less powders, other explosive or incendiary devices
within the meaning of paragraph (5) of Section 232
of title, and any chemical compounds, mechanical
mixture or device that contains any oxidizing and
combustible units, or other ingredients, in such pro-
portions, quantities, ur packing that ignition by fire,
by friction, by concussion, by precussion or by detona-
tion of the compound, mixture or device or any part
there may cause an cxplosion.”’ (emphasis supplied).
32
18 U.S.C. § 232 (5) provides as follows:
‘The term ‘explosive or incendiary device’ means
(a) dynamite or all other forms of high explosives,
(b) any explosive bomb, grenade, missile, or similar
device, and (¢c) any incendiary bomb, or similar device,
including any device which (i) consists of or includes
a breakable container, including a tNammable liquid
or compound, and a wick composed of any material
which, when ignited is capable of igniting such Ham-
mable liquid or compound, and (ii) can be carried or
thrown by one individual acting alone."’
With regard to the dual theory of the government re-
garding the nature of the explosive involved, a separate
analysis of each is necessary. First a chemical compound
must contain oxidizing and combustible units, or other in-
gredients, in such proportions, quantities or packing that
ignition by fire may cause an explosion 18 U.S.C. § 544
(j). A plain reading of Section S44 (i)—when viewed
in the context of the words and provisions preceding aud
following—indicates that an ‘‘explosive’’ of this first
category must be:
1. <A chemical compound, containing
2. an oxidizing or combustible agent
3. already proportioned, mixed or packaged
4. such that ignition by fire may cause explosion.
The question presented on the facts of this case is
whether gasoline, in containers or spread on trailers, is
the type of chemical compound contemplated.
Admittedly, gasoline is a chemical compound. However,
there is no evidence in this case that gasoline contains an
oxidizing or combustible agent. Furthermore, the stipula-
tion in this case concerning gasoline and its properties
clearly indicates that something must be permitted to occur
to gasoline to cause it to have explosive properties i.e.
it must be permitted to mix with air and generate fumes
in a certain ratio before there could be an explosion. .\
container of gasoline all by itself is not an already pro-
portioned, mixed or packaged compound which may ex-
O38
plode on contact with fire as set forth in 3 above, Gasoline
alone in containers will not ignite or explode.
It may arguably be asserted that the proportioning or
mixing required may be attained by spreading the gasoline
on the trailer. However, this type of spreading or pouring
is not really a proportioning mixing or packing as those
terms commonly denote or contemplate and this extention
in interpretation was clearly not contemplated by the
definition. This argument becomes even weaker when
viewed in the context of those explosives specifically named
in the statute. The common characteristics of those named
are transportability and detonation as contrasted to a
55 gallon drum which is immobile, not readily detonable
but subject merely to a rapid flame, In the case at bar,
the evidence clearly demonstrated that the gasoline drums
were merely utilized for transportative purposes to bring
the gasoline into the premises, and thereafter pour gasoline
from them to soak the premises for acceleration of a fire.
In fact, the drums were turned over to allow their contents
to spill out and saturate the floor area. Neither drums
were set up to explode or detonate.
Arguably, however, the meaning of ‘ta chemical com-
pound’* within the definition elements 1 through 4, con-
cerning specifically numbers 3 and 4 regarding... ‘tin
such proportions quantities or packing that ignition by
fire .... may cause an explosion’’ is unclear and ambig-
uous when viewed in the context of gasoline spread on
trailers. The Ninth Cireuit in the United States v. Gere
resolved that ambiguity concerning photocopy fluid by
searching Congressional intent and determined that photo-
copy fluid soaked trailers were not chemical compounds
nor incendiary devices within the statute. This has been
extended to gasoline in U'nitea States v. Birchfield, 486
F.Supp. 137, (1980). Therefore, we shall likewise concen-
trate in this Petition in clearing up any such ambiguity
by a study of Congressional intent and legislative history
concerning the history and passage of the legislation and
+
the Organized Crime Control Act. Title XI of which it
is @ part.
However, the second governmental theory is more easily
disposed of on clear definitional grounds and will be dis-
posed of before an in depth inquiry into Congressional
intent. In Section S44 (j), the term, ‘incendiary device"
is modified by the phrase ‘within the meaning of para-
graph (5) of Section 232 of this title’. Therefore, to
determine what an incendiary device is, one must look to
Section 232 where three separate categories are itemized
as follows;
(a) dynamite and high explosives;
(b) any explosive bomb, grenade, missile similar
device; and
(¢) an incendiary bomb, fire bomb or similar device
which :
(i) consists of a breakable container, including a
flammable liquid and wick; and
(ii) is portable,
Here the plain meaning of the word ‘incendiary device"
is crystal clear, readily discernible and totally unambig-
uous. The device may be (a) dynamite or a high explo-
sive. Gasoline contained in drums spread on trailers
across a floor does not qualify here, as it is neither dyna-
mite nor a high explosive but a flammable liquid. There
is nothing in the working of the statute which would
support a theory that tlammable liquids capable of ex-
plosive force upon ignition are included in the definition
of “high explosives"’,
Secondly, with regard to (b) gasoline in drums or spread
on trailers across the floor are not bombs, grenades, mis-
siles, or other similar devices. ‘he clear intent of this
provision is to bar portable explosives not immobile large
storage containers such as 55 gallon drums. Nor can it
be argued that the general term ‘‘or similar devices’’ can
be inclusive of such as the gasoline soaked trailer or
storage drums. Under the doctrine of ejusdem generis,
general words such as ‘‘or similar devices’’ following
35
specific definitional terms take their meaning from and are
limited by those specific terms, United States v. Baranshi,
484 F.2d 556, 566 (7th Cir, 1973). Thus bombs, grenades,
or missiles clearly circumseribe, delimit, and define any-
thing inclusive within the term ‘tor similar devices”
Finally, gasoline drums and gasoline souked trailers are
clearly not an incendiary bomb, fire bomb, a similar device
which consists of a breakable container with a wick and is
portable. ‘The intention of the definition here is clearly
and singularly a device thrown such as ‘*Molotoy Cock-
tail’’. See l'nited States vo Gere, 662 F.2d 1291 (1981).
There is no reasonable or justifiable interpretation of the
facts here which would justify the conclusion that an ‘‘in-
cendiary device’ was utilized in the case at bar or support
the government's second theory concerning applicability
of the statute.
Furthermore, it should be noted here that although the
government relied on the theory ‘tincendiary devices*’ on
the motion in arrest of judgment, they never submitted the
theory to the Court or jury during trial. They solely re-
lied upon the ‘‘chemical compound" theory of statutory
applicability. This can be seen by the instruction sub-
mitted to the jury on this issue wherein explosives is
defined only in terms of the single theory of ‘chemical
compound’’, (C1. 102),
Any possible governmental argument on this issue con-
cerning an ‘‘incendiary device’’ in the case at bar was
amply considered and rejected in United States vy. Birch-
field, supra, On facts very similar to those in the case at
bar, the District Judge in dismissing charges under this
statute said;
“This Court accepts the defendant's argument that
throwing paper onto a gasoline-soaked floor fails to
constitute the use of an explosive as contemplated by
18 U.S.C. § S44(i). The Court will take judicial notice
that the form of destruction described in paragraph 1
of the indictment is a very common means of arson,
36
and in absence of cleay statutory language or a com-
pelling legislative history, this Court must assume
that Congress, in enacting 18 U.S.C. § S44, did not
intend to exert federal jurisdiction over this tradi-
tional area of state concern,”
Any such extension would fly in the face of Congres-
sional intent and executive enforcement and any ambiguity
in the scope and application of $ S44 (i) and (j) is re-
moved by a review of that intent and enforcement. As in-
dicated above, it may be argued that the scope of the
statute and Title XJ, as well as the meaning of the term
‘chemical compound’’ might involve some ambiguity.
Therefore, it is appropriate to look at and analyze legis-
lative intent. This intent can best be found in 1970 U.S,
Code Cong. and Adm. News, and in the statements and
comments made by the various legislators during debate
on the legislation.
In 1970 U.S, Code Cong, and Adm. News, p. 4011, it is
stated:
‘This title (Tithe NI), added by the committee,
established Federal controls over the interstate and
foreign commerce of explosives and is designed to
assist the States to more effectively regulate the sale,
transfer and other disposition of explosives within
their borders,
In addition to the Federal regulatory scheme, Title
XI strengthens the Federal criminal law with respect
to the illegal use, transportation or possession of ex-
plosives. Under this part of the title, the definition
of explosives is broadened to include incendiary de-
Vices such as ‘Molotov Cocktails’.
The congressional intent in adopting Title XI is stated
as follows;
‘*Bombing and the threat of bombings have become
un ugly, reeurrent incident of life in cities and on
campuses throughout our Nation. The absence of any
effective State or local controls clearly attest to the
urgent need to an act strengthened Federal regula-
tion of explosives. 1970 [7.S. Code Cong. and Adm,
YVews, pp. 4013-4.
37
Further in the section analysis, and regarding the defini-
tion of explosives as found in Section 844(i), it is stated:
“Section S44(j) sets forth the definition of explo-
sive, for the purposes of Section S44(d) through (1).
The use of the separate definition is for the purpose
of including incendiary devices within the coverage of
Section 844(d) through (i), and to make the excep-
tions applicable to the regulatory provisions of this
chapter inapplicable to these sections.’’ 1970 U.S.
Code Cong. and Adm. News, 4047
A perusal of the Congressional record and reading of
the statements of the legislators during debate is even
more helpful in removing ambiguity and supporting the
appellants’ contention that federal jurisdiction is absent
in the case at bar. (116 Cong. Ree. 1298 et seq. 55306). All
the speakers addressing the issue in debate singularly
manifest an intent to avoid the area of arsons and con-
centrate solely on bombings and traditional explosives.
From the foregoing. it is clear that the intent to Con-
gress in enacting this legislation was singularly confined to
bombings and the use of explosives in connection there-
with. There was no indication or discussion whatsoever to
extend federal jurisdiction to arson and/or arsons for
profit. No discussion whatsoever resulted concerning an
extention of explosives to be inclusive of flammable liquids,
accelerants, gasoline or the like commonly used in the
offense of arson.» The very inclusion in the act of ‘* Molotov
Cocktails’’ specifically indicates an exclusion of the sub-
stances in the case at bar, for before the amendment to
specifically include such devices, even such fire bombs
were felt by Congress to have been excluded. Thus it is
apparent that Congress never intended this legislation to
be extended to encompass arsons or the burning of prop-
erty for profit by use of gasoline type accelerants.
Under the doctrine of Separation of Powers Federai
Courts must avoid legislating in interpreting Federal
statutes beyond their intended and plain scope. To that
end the intent of Congress in enacting such legislation has
38
always been and must be cousidered and respected by the
Courts. The Federal (ourts should not interpret a stat-
ute in such a manner as to strip it of its meaning, but
rather should look to the statute as written and give it the
same meaning that was intended by Congress at the time
of its enactment. ‘This Court has held that it is the sponsor
of the legislation to whom we look when the meaning of
statutory words are in doubt. National Woodwork Manu-
facturers Assoc. v, National Labor Relations Board, 286
U.S. 612, 640 (1967). This Court has similarly held that
it would look to the understanding of others in a debate
and if the words used in a statute were different than
protrayed by the speakers during debate, others would
have spoken to the contrary.
On the other hand, what legislators do not say during
debate is likewise of great import. lewis v. United States,
401 U.S. 808, 811 (1970). The singular thing which was
not said during these debate= on the legislation is the meu-
tion of the term ‘‘arson*’ or any intent to alter the state-
federal balance between what has heretofore traditionally
been left to state prosecution. None of the many statistics
citeu throughout the debates included the more common
crime of arson.
Current events at the time of the legislative enactment
are likewise relevant to a resolution of this issue. Moly
Trinity Church v. United States, 143 U.S. 457. The singular
important current event acting as a catalyst for the pas-
sage of the legislation was a current rash of bombings at
the University of Wisconsin and the death of a professor
there.
Finally, it has been universally accepted that ambiguity
concerning the scope and applicability of federal criminal
statute is traditionally resolved in favor of limited and
restricted application. HNewis v. United States, supra at
p. 812. United Siates v. Campos-Serrano, 404 U.S. 293,
297 (1971); United States v. Bass, 404 U.S. 336, 347
39
(1971); U.S. v. Batchelder, 451 F.2d 626, 630 (7th Cir.
1978); US. v. Isaacs, 493 F.2d 1124, 1147 (7th Cir. 1974).
In analyzing which of the two or more interpretations
to attach to an ambiguous statute, the factor of the Fed-
eral-State balance comes into play. In United States v.
Bass, 404 U.S. 336, 349, the Court discussed this as fol-
lows:
‘There is a second principle supporting today’s re-
sult: Unless Congress conveys its purpose clearly, it
will not be deemed to have significantly changed the
Federal-State balance. (Congress has traditionally
been reluctant to define as a Federal crime conduct
readily denounced as criminal by the States. This
Congressional policy is rooted in the same concepts
of American Federalism that had provided the basis
for judge-made doctrines. (case cited)
Hence, statutes should be carefully and strictly con-
strued in order to avoid extension beyond the limits in-
tended by Congress. Moreover, such construction is es-
pecially appropriate where as here, the Government urges
that we construe a Federal criminal statute so that it
reaches conduct which the states should appropriately con-
trol aud ‘which they can control, effectively.
Another consideration in resolving this issue is the his-
torical interpretation attached to the legislation by the
executive branch of government and particularly those
therein whose function and duty is to enforce its provi-
sions. In this regard, it is significant to note that four
other known cases exist wherein the government has at-
tempted to extend this statute to a situation wherein an
accelerant was spread through a building and then ignited
traditionally akin to the state offense of arson or arson
for profit.
In conclusion, the Court below has erred in denying the
motion in arrest of judgment concerning the question of
federal jurisdiction and the scope of § 844 (i) and (j),
vasoline in drums, poured on materials or flooring, or
soaked on trailers, does not fit into the category of chemical
4)
compound within : S44(j). Sor does this qualify as within
the meaning of an incendiary device under § S44 (j) or
¢ 232(5). This conclusion is further supported by the
Congressional record (both by what was said and unsaid) ;
current events surrounding the passage of the legislation
during 1969 and 1970 which caused Title XI to be added
to the Organized (rime Control Act, and finally by its
implementation by the Justice Department throughout the
country. For these reasons this Court should grant the
writ.
(B)
THE COURT ERRED IN HOLDING THE CONSPIRACY
OPEN AND ON-GOING BECAUSE INSURANCE PRO.
CEEDS HAD NOT BEEN RECOVERED AND ALLOW.
ING THE CO-CONSPIRATORS TAPE INTO EVIDENCE
AGAINST THE NON-PRESENT DEFENDANT.
In this case the trial court made a judicial determina-
tion that a certain tape recorded conversation between the
named, but unindicted, co-conspirator, Wadie Howard, and
the defendant, Chris Callas, on July 15, 1979, was admissi-
ble evidence of the conspiracy and substantive offense as
to all the named defendants. I making this decision, the
trial court considered the holding in United States v.
Santiago, 582 F.2d 112s and applicable rules of evidence,
801(d)(2)(E), 104(a) and 409.
Rule 801(d)(2)(E) provides in pertinent part,
‘*\ statement is not hearsay if... . the statement
is offered against a party and is....a statement by
a co-conspirator of a party during the course and in
furtherance of the conspiracy.”’
The preponderance test was adopted as an appropriate
basis in determining whether a conspiracy has been proven
so as to authorize the admission of co-conspirative state-
ments under Rule 104(a). In elaborating on this principle,
(‘ourts have set forth and established certain requirements
which must be fulfilled, by a trial court when confronted
with the issue of admissibility of a co-conspirator’s state-
ment. The question of admissibility ix solely for the judge,
41
and statements in a criminal! case are to be admitted against
the defendant, once the Government has established by a
preponderance of the evidence, independent of the state-
ments themselves, (emphasis added) 1) that a conspiracy
existed, 2) that the defendant was a member of the con-
spiracy, and 3) that the statement was made during the
course of, and in furtherance of, the conspiracy. It is im-
portant to note that these determinations must be made by
the court independent of the statements themselves.
In the case at bar, the court struggled long and arduous-
lv with the issue of admissibility relative to the tape re-
corded conversation between Wadie Howard and Chris
Callas (Tr. 445-53, 481-505, 506-548). This was in the
court’s own mind, a very close question (Tr. 1298, 1299,
1446). After having vacillated numerous times in ruling
on this issue after having heard endless theories advanced
for admission by the prosecutors, after listening to argu-
ment by defense counsel refuting the legal and factual basis
upon which each theory was predicated, and after having
ruled for and against admission on more than one occa-
sion, the court finally asked the prosecution, in exaspera-
tion and apparent frustration, whether it was going to
persist in offering as evidence the taped conversation and
risk reversal if the court’s determinations were erroneous
(Tr. 1446). The prosecution's immediate response was
‘Yes, absolutely, Your Honor,’ by Mr. Evon, and
simultaneously, ‘* Yes, we do, Your Honor,’’ by Mr. Mars
(Tr. 1446). These anxious responses affirming the desire
for admission of this evidence clearly is indicative of its
critical importance in the prosecution of this indictment in
the opinion of the Assistant United States Attorneys con-
ducting the trial. The testimony of the Government's key
witness, Wadie Howard, was unquestionably weak as to
the conspiracy and to the participation of certain defen-
dants. His credibility, veracity and believability, presented
an even greater concern to the prosecution. This problem,
however, Was not unexpected but was anticipated as far
42
back as July 1979. In poiut of fact, the agents of the
Aleohol, Tobaceo and Firearms Unit of the Department
of Justice in combination with attorneys assigned to the
United States Attorney's Strike Force set out in their
investigation not necessarily to unearth the truth, but to
corroborate Wadie Howard's version of what had occurred
and transpired thereby incidentally insulating his testi-
mony from attack and impeachment. Prime examples of
their concerted, conscious efforts to bolster the weak link
in the prosecution's chain of evidence is the arranged
tape recorded conversation initiated and manipulated by
Wadie Howard, and their refusal to disclose to defense
counse! certain Brady-type evidence in relation to wit-
nesses they interviewed who contradicted and refuted
Wadie Howard.
Agent Gorecki candidly stated that Wadie Howard was
sent out to engage Chris Callas in conversation and told
to get out of him anything he could (Tr. 1480). The sole
purpose of this conversation was for Howard to entrap
Callas into admissions and incriminating statements im-
plicating himself, and the Xhekas. However, the sub-
stance of the conversation reveals awkward efforts by
Wadie Howard to elicit incriminating statements, with a
rather remarkable lack of success. The tape is of very
poor quality, at times totally inaudible and the listener
is unable to discern who is speaking, to whom, and what
is being said. However, the prejudice of this tape record-
ing Was recognized by the court at the outset of the trial.
While denying the defense’s Motion in Limine requesting
a pretrial hearing for determination of the issue of ad-
missibility, the court stated that the taped conversation
was potentially prejudicial to all of the defendants (Tr.
Vol. LA, p. 38) and cautioned the Government to structure
the proof so that the gourt would be in a position to make
the admissibility in advance. (‘ontemporaneously there-
to, the court indicated that the probative value of the
recorded conversation was unimportant to the Govern-
43
ment's case (Tr. Vol. IS, p. 37). This observation was
astutely and correctly made from a purely evidentiary
point of view. Later, however, during the actual pre-
sentation of evidence, it became apparent the recording
and conversation were increasingly significant and im-
portant as a strategical trial device calculated by the
prosecution to be relied upon by the jury as enhancing
the credibility of Wadie Howard, and thereby strengthened
his otherwise weak testimony.
The trial court is charged with the sole responsibility
for making the crucial ultimate determination of admissi-
bility. This decision obviously affects the jury's delibera-
tions and considerations relative to the guilt not only of the
declarant, but also his alleged co-conspirator defendants.
This discretion should be exercised with great caution and
due consideration of the limitation and the statements
must have been made ‘‘during the course of’* and ‘‘in
furtherance of*’ the conspiracy. The court should also be
convinced that the conspiracy, more probably than not, ex-
isted and all the other alleged co-conspirator defendants
were, more probably than not, members of and partici-
pated in the conspiracy. ‘These limitations and determina-
tions are useful devices for the protection of defendants
from the dangers and unfairness posed by Rule 801(d)
(2) (E). The purpose of said Rule being to protect the
accused against the idle chatter of criminal partners as
well as inadvertently misreported and deliberately fabri-
cated evidence. Weinstein on Evidence, pp. 801-845.
In this case it ean be logically admitted that the evidence
presented by the prosecution, independent of the taped
conversation itself, taken in its most favorable light, suffi-
ciently established by a preponderance, the probable ex-
istence of an initial conspiracy. The question, however,
whether there was sufficient independent evidence of the
defendant, Billy Xheka‘’s knowledge or participation in
the conspiracy; whether the conspiracy continued until
1979; and whether there was sufficient independent evi-
44
dence that the recorded conversation was made during the
course of and in furtherance of the continuing conspiracy,
cannot be logically so concluded and were not determined,
as required, by the court on independent evidence.
It is a well settled principle of law that once a co-cou-
spirator has been arrested, a confession or admission made,
is not in furtherance of the criminal conspiracy, Fiswick
v. United States, 67 S.Ct. 224, and that an out of court
declaration made after arrest may not be used at trial
against any of the declarant’s alleged partners in crime,
Wong Sun v. United States, 83. S.Ct. 407. Likewise, in the
case at bar, the statements of Wadie Howard in the taped
conversation of July 15, 1979, were of no probative value in
determining the guilt of Sonny Xheka, Billy Xheka and
Chris Callas, because at the time made, he was no longer
a co-conspirator but a Government informant. The Gov-
ernment at no time argued or sought admission of the
1979 recorded conversation based upon an adoption of
Wadie Howard's statement by Chris Callas under Rule
801(d)(2)(B). It is, therefore, only the 1979 conversa-
tion of Chris Callas which the trial court should have
determined to be of probative value and made during the
course of and in furtherance of a continuing conspiracy.
Upon review of the propriety of this determination and ful-
fillment of the admissibility requirements an acquittal of
the declarant, Chris Callas, is relevant and may be persua-
sive in determining whether the prosecution's evidence in-
dependently demonstrated a sutticient basis upon which
the trial judge concluded a continuing criminal conspiracy.
Not all statements made by alleged co-conspirators can
ve considered to have been made in furtherance of the
charge conspiracy. Fiswick v, United States, supra. Mere
conversation between conspirators or merely narrated
declarations are not admissible as declarations in further-
ance of the conspiracy, since they cannot meet the condi-
tion for admissibility which is that the statements must
further the objectives of the conspiracy. The agency theory
45
of conspiracy is at best a fiction and ought not to serve as
a basis for admissibility beyond that already established,
Advisory Committee's Notes to Proposed Fed, R. Evid,
$01(d)(2)(E).
It is certain that the exception applies only to declara-
tion made while the conspiracy charged was still in prog-
ress, Anderson v. United States, 94 S.Ct. 2253, Kruie-
witch v. United States, 69 S.Ct. 716, Fiswich v. United
States, supra. It is reversible error to admit such declara-
tions after termination of the conspiracy. Krulewitch v.
United States, supru.
The indictment in this case alleges as the object of the
conspiracy charged that the Bull -N- Bear Restaurant,
Inc., would be damaged and destroyed by fire. The arson
was therefore the criminal joint venture of the co-con-
spirators and the result to be attained by their preconcert,
connivance, criminal intent and overt acts. It was to the
proof of this end and that the prosecution presented its
evidence. Secondarily, and as auxiliary objects the in-
dictment charged concealment of the true circumstances
surrounding the burning and the attempt to receive insur-
ance proceeds. The Government presented absolutely no
evidence of the alleged conspiracy to conceal and the only
evidence, if relevant or probative, at all of an attempt
to receive insurance proceeds is the exhibited lawsuit filed
by the Bull -N- Bear Restaurant, Inc., against National
Union Fire Insurance Company. The inclusion of these
subsidiary objects after the main purpose of the conspiracy
had been accomplished, is an attempt by the prosecution
in its pleadings to exten ‘he life of the conspiracy a suili-
cient period of time to bolster its otherwise weak case with
the tape recording.
The taped conversation took place on July 1s, 1979, al-
most three years to the day after the arson, since Wadie
Howard had seen Billy Xheka, and had seen or talked to
Sonny Xheka. This conversation was contrived by the
Government and initiated by Wadie Howard who had seen
46
and spoke to Chris Callas vu more occasions that he could
accurately remember since July of 1976. It is important
to note that in none of these numerous previous conversa-
tions was the subject of the Bull -N- Bear Restaurant fire,
Sonny or Billy Xheka, concealment of the true cireum-
stances of the Bull -N- Bear Restaurant fire, money, or
insurance discussed or even mentioned, by either Wadie
Howard or Chris Callas. Wadie Howard testified he
had no expectation of receiving any more money
and he had, in fact, been paid in full as agreed. He fur-
ther testified his agreement was not predicated upon any
insurance recovery and that he never intended to give
Chris Callas any money, nor did he believe Chris Callas
expected to receive any money from him. Are the actious
of Sonny Xheka, Billy Xheka, Chris Callas, and Wadie
Howard during the years 1977, 1978 and 1979 those of co-
conspirators engaged in a continuing criminal enterprise!
What independent proof is there of a continuing criminal
conspiracy? The trial court found none other than the
controversial tape recording itself and the unintelligible,
undiscernible, sometimes inaudible statements it contained.
(Tr, 445-13, 21, 22, 23, 26, 27, 28, 29, 31, 32, 484, 487, 532,
1042, 1208, 1214, 1215, 1443, 1444, 1445, 1446, 1452). The
total reliance by trial court on the contents of the taped
conversation itself in making the required determinations
under the Santiago decision was error. While it is neces-
sary to consider the content of the declaration or state-
ments themselves for purposes of relevancy, the issue of
admissibility must be resolved based upon sufficient inde-
pendent evidence that at the time the statements and
declarations were made, the criminal conspiracy continued
to exist, the defendants, including Billy Xheka, were mem-
bers of it, and the declarations and statements were made
‘‘during the course of’’ and ‘‘in furtherance’’ of the con-
tinuing conspiracy.
Though the result of a conspiracy may be continuing, the
conspiracy does not thereby become a continuous one.
United States v. Irvine, 98 U.S. 450. Fiswick v. United
47
States, supra. Continuity of action to produce the unlaw-
ful result and ‘‘continuous cooperation of the conspirators
to keep it up is necessary”’. I'nited States v. Kissel, 218
U.S. 601. Fiswick vy. Lnited States, supra,
It is quite obvious from the arguments and theories
advanced by the prosecutors that the purpose of alleging
as subsidiary conspiratorial objects concealment and in-
surance, was an attempt to extend the time within which
hearsay declaration of Chris Callas would bind the alleged
co-conspirator defendants, Sonny and Billy Xheka. An
attempt which the trial court sanctioned by allowing their
admissibility. It is equally clear that the limited scope of
the hearsay exception in federal conspiracy trials is a
product of this Court’s ‘‘disfavor’’ of ‘‘attempts to
broaden the already pervasive and wide sweeping net ot
conspiracy prosecutions’, Grunewald v. United States, 17
S.Ct. 963; Dutton v. Evans, 91 S.Ct. 210.
Conspirators about to commit crimes always expressly
or implicitly agree to collaborate with each other to con-
eeal facts in order to prevent detection, convictiou and
punishment. An argument that even after the central
criminal objective of the conspiracy has succeeded, an im-
plicit subsidiary phase, which has concealment as its sole
objective, survives, cannot be accepted in even those situ-
ations where the actual agreement to conceal was charged
as an express part of the initial conspiracy, Grunewald
y. United States, supra. To adopt such an argument would
sanction and create automatically a further breach of the
general rule against the admission of hearsay evidence,
Lutwak v. United States, 73 S.Ct. 481. Krulewitch v. United
States, supra.
The holdings of this Court in Arulewitch, Lutwak, and
Grunewald can be analogized to the circumstances of this
case. The inclusion of insurance proceeds together with
concealment as subsidiary objectives is a dual pronged
attempt to attain the same end. The rationale of these
48
decisions if logically applied compels the same result.
There is no remarkable dissimilarity between the concepts,
conspiracy/concealment and arson/insurance proceeds, as
they relate to each other in this case. The latter are th
natural consequence and flow as direct results. Insurance
proceeds are the aftermath of an arson for profit scheme,
which is how this case was characterized for the jury (Tr.
1-8). The obtaining of insurance proceeds in an arson for
profit scheme necessarily presupposes and is part of the
concealment. As in Grunewald, the Government is merely
rearranging the argument that the continuing conspiracy
to receive insurance proceeds should be implied out of the
mere fact of the conspiracy to damage and destroy by fire
the restaurant. This argument requires that the very same
acts should be used as circumstantial evidence from which
it should be inferred that there was from the beginning
and continuing until July 18, 1979, an actual conspiracy
to obtain insurance recovery between all the defendants.
As in Grunewald, Lutwak, and Krulewitch, there is not a
shred of direct evidence in this record to show anything
like an express original agreement among the co-conspira-
tors to continue to act in concert in order to obtain any
insurance recovery or proceeds after the commission of
the arson in 1976.
In this case it cannot be said with any fair assurance
that the jury was not influenced or swayed in its delibera-
tion and verdicts by the use of the hearsay declaration and
statements of Chris Callas. In this proceeding such a con-
clusion is further necessitated and compelled by the poor
quality of the tape recording itself. On numerous occa-
sions the court stated it was inaudible, unintelligible, and
nondiscernible as to who was speaking and to what was
being said and that a dispute existed as to the taped con-
versation’s contents. (Tr. 445-28, 29, 30, 31, 32, 33, 482, 484,
487, 496-500, 505, 548, 549, 1015, 1148). Further proof of
the trial court’s concern over the ability of the jury to
49
understand and discern what was said on the tape and by
whom, is evidenced by the court’s refusal to allow the
Government’s prepared transcript of the tape conversa-
tion to be utilized by the jury as an aid in their delibera-
tion.
In this case, the trial court erred in not exercising prop-
er judicial discretion under Rule 403. The committee com-
ments to Rule 403, recognize that certain circumstances
call for the exclusion of evidence which is of questioned
relevance. These circumstances entail risks which range
all the way from inducing decision on a purely emotional
basis, at one extreme, to nothing more harmful than mere-
ly wasting time, at the other extreme. The comments
pointed out that situations under this Rule call for bal-
ancing the probative value of and the need for the evi-
dence against the harm likely to result from its admission.
In view of the record relating to the admission of this
piece of evidence, it is undisputed that a possibility of
confusion or the misleading of the jury existed. If a trial
judge determines that the proffered evidence presents a
danger of confusing the issues or misleading the jury and
this danger outweighs its probative value, he should ex-
clude the evidence. It is also without question, a fact, that
the entire scenario caused undue delay of the trial and
was a needless waste of time which angered the jurors
and made them hostile. This occurrence could have and
should have been avoided by the trial court in conducting
a pretrial hearing as requested by the defense in the Mo-
tion in Limine. The trial court again erred in sum-
marily denying this motion and refusing such a hearing.
In the instant case, it was presented to the trial court
that whatever probative value the tape recorded conver-
sation offered to the issues requiring determination by
the jury, such was far outweighed by the unfair prejudices
created to the defendants by engendering confusion, mis-
leading the jury, causing undue delay of the proceedings,
and waste of time.
50
The error of the trial court was further compounded by
the denial of the Motions for Severance filed prior to trial.
At the time the trial court summarily denied these mo-
tions, it had already beeen put on notice of the Govern-
ment’s intended use of out-of-court prejudicial hearsay
statements and declarations of Chris Callas against all
defendants by the Motion in Limine. As a result of thix
ruling, the trial court effectively denied the defendants,
Sonny Xheka and Billy Xheka, the rights of confrontation
and cross examination protected and guaranteed under
the Sixth Amendment and the due process standards of
the Fifth Amendment to the United States Constitution.
Motions for Severance were filed by all defendants and
the trial court was additionally provided with an affidavit
executed by Chris Callas in support of the request for
separate trials. This affidavit set forth, that Chris Callas
could give testimonial evidence of an exculpatory nature
as it related to the defendants, Sonny Xheka and Billy
Xheka, and further that if called to testify in the trial of
either of his two co-defendants, he would not exercise or
assert his constitutional rights and guarantees against
self-incrimination under the Fifth Amendment to the
United States Constitution, but rather give truthful an-
swers to proper questions propounded.
This issue of confrontation and due process was dis-
cussed in this Court in Dutton v. Evans, supra. In that
proceeding the issue revolved around the use, by the prose-
cution, of out-of-court hearsay declarations made by a co-
defendant. In dealing with the relatiouship between the
co-conspirators hearsay exception and the Sixth Amend-
ment, the court acknowledged that the confrontation clause
does not bar the admission of all hearsay, but has, on
more than one occasion, found a violation of confronta-
tion values even though statements in issue were admitted
under an arguable recognized hearsay exception. The
Sixth Amendment's Confrontation Clause and evidentiary
a1
hearsay rules stem from the same roots, but the two have
never been equated. Hearsay rules and the confrontation
clause are generally designed to protect similar values,
but it is quite different to suggest or hold that the appar-
ent overlap is complete and total insofar as the Confron-
tation Clause is nothing more or less than a codification
of rules of hearsay and their exceptions. An analysis must
be made by the trial court or on review to determine wheth-
er there existed sufficient indicia of reliability to permit
the introduction of the hearsay declarations in spite of
the lack of opportunity for the defendant to cross examine
the declarant, California v. Green, 90 S.Ct. 1930. The ad-
missibility of evidence under the co-conspiratory exception
does not automatically demonstrate compliance with the
Confrontation Clause.
(C)
THE PETITIONERS WERE DENIED A FAIR TRIAL
AND DUE PROCESS OF LAW BY THE PROSECUTORS
PURPOSEFUL AND REPEATED SUPPRESSION OF
FAVORABLE EVIDENCE TO THEIR REFUSE.
This case singularly revolved around the testimony and
credibility of Wadie Howard, an alleged co-conspirator.
With regard to Billy Xheka, Howard is totally uncor-
roborated and the singular witness against him. Howard's
testimony was seriously impeached to say the least,
fraught with inconsistencies, alterations and changes of
facts and circumstances previously under oath and other-
wise. In fact, certain areas of his testimony clearly ap-
proach perjury. At best the government’s proof in this
case is questionable and seriously suspect. For this rea-
son, the issues herein become doubly significant and the
fairnesss of the defendant’s trial must be circumscribed
by the character and sufficiency of this testimony, as well
as the potential prejudicial effect of any suppressed ma-
terial which could have affected his credibility and the
weight to be afforded his testimony.
52
When the reliability of any given single witness may
well be determinative of guilt or innocence, matters affect-
ing substantial fairness and concerning credibility and/or
perjury, including nondisclosure of impeaching materials,
restriction of cross examination and comments of the
Court reflecting upon credibility, take on a unique signifi-
cance upon review creating almost a presumption of rele-
vance and materiality in and of themselves without plac-
ing a burden upon the appellant to establish actual preju-
dice. Prejudice and relevancy become presumptive based
upon the close question of credibility and evidentiary suffi-
ciency, especially as here, when dealing with bought testi-
mony from a co-conspirator. Giglio v. U.S., 405 U.S. 83
(1972); Napuce v. lilinois, 360 U.S. 264 (1979); Mooney v.
Holohan, 294 U.S. 103 (1935); Brady v. Maryland, 375
U.S. 83 (1963).
The prosecution in this case demonstrated a clear and
purposeful pattern of suppressing and keeping from the
defense substantial evidence within their possession and/or
knowledge which seriously impeached and affected the
credibility of Wadie Howard, and substantially hindered
the cross examination.
If anything is truly apparent from a fair reading of the
proceedings in this case, it is the fact that the prosecutors
repeatedly violated their obligations of disclosures both
in conformity with pre-trial Brady motions and the
Court’s specific instructions to turn over such evidence
(CL 25, 34, 40). The violations were so apparent and
frequent that the Court on one occasion specifically stated
that three incidents of concealment had already occurred
and then inquired of the prosecutors if there was any
additional material improperly withheld as she did not
wish this to recur (Tr. 1014). Thereafter at least two more
incidents of concealment arose. The Court even charac-
terized their actions as making the government look ex-
tremely bad (Tr. 937) and inquired of the previous trial
53
experience of the prosecutors who related that they have
over 115 jury trials (Tr. 938).
Prior to trial, the defense made appropriate pretrial
discovery requesting all Brady type evidence (CL 25, 54,
40). These motions were supported by memorandum rais-
ing the critical importance of these disclosures based upon
the singular uncorroborated importance of Howard’s tes-
timony and the extreme relevance of material reflecting
upon his credibility (CL 42). U.S. v. Giglio, supra was
specifically cited as a case in point (CL 42). Indeed, a full
day, pretrial, was spent arguing the disclosure of such
documents praeelrsi, “erttd involvement in other
offenses, investigations, and testimonies before other
Judges. The trial Court during such arguments clearly
reflected her concern for full compliance. These motions
were ruled moot by the Court based upon the government's
erroneous and false representations that they had fully
complied, searched their files, and turned everything over
(CL 79; Tr. 12-A, 13-A, 14-A). These protestations came
forth from the prosecution on each successive incident,
one after the other despite each previous discovery of
non-disclosure. Notwithstanding the above, five specific
instances of suppression resulted during trial. A sixth
instance was raised in the post trial motion.
The first incident occurred near the end of Howard's
cross, when Howard suddenly for the first time blurted
that on Saturday evening-Sunday morning, after receiving
the key, he entered the premises and removed 12 cases of
liquor from the supply room (Tr. 650, 651, 652, 657, 658).
He had told the government this pretrial, and that they
had recorded it (Tr. 651-652). He told this to both the
prosecutors and agent Gorecki (Tr. 650, 651, 652). It is
conceded that this fact was omitted from his July 1979
statement and Grand Jury testimony (Tr. 651) and was
not included in the $ 3500 material turned over to the
defense (Tr, 670-A). The government admitted that How-
o4
ard had told them of this ten days before the trial and
that it was in their notes (Tr. 670-A). The prosecutors
also conceded, that they never mentioned this to the de-
fense (Tr. 670-A), and it was never brought out during
Howard's direct testimony (Tr. 670). Although they knew
of it before Meeker, Ciolli and Williams testified they al-
lowed those witnesses to testify that the liquor supplies
were sparse, infer the defendants had removed such liquor
and then allowed that obviously false inference to remain
with the jury (Tr. 96, 97, 98, 106, 142, 162, 164). The prose-
cutors indicated that they had intended to bring this out
on direct, but had inadvertently neglected to do so (Tr.
670-A, 676). The record clearly refutes this claim and a
reading of the question sequence demonstrates that the
question was not omitted, but the questioning purposely
led the witness to another day and incident immediately
after he answered concerning the securing of the key (Ty.
678, 679). It was during this incident that a standing
oral motion to dismiss based upon government misconduct
was made and ruling thereon reserved throughout the trial
as the other incidents unfolded (Tr. 676, 679). It should
be pointed out that the removal of liquor by Howard had
other significance than accounting for a low liquor supply
at the time of the fire. This was an identical aspect of his
Seville House testimony and strikingly similar thereto
(Tr. 670-A). It further provided an area of impeachment
of Howard regarding the locked liquor door, the type of
lock thereon and the fact that the disco was open and in
operation at the time he allegedly removed this liquor in
the presence and view of people in attendance thereat.
The second incident again occurred during Howard's
cross and after it had progressed even further. At all
times earlier, Howard had testified to only one meeting at
Elliott’s in the presence of Shaban Islami (Tr. 461, 462,
766). His 1979 statement and Grand Jury testimony like-
wise indicated this. Indeed, the government prosecutors
55
in making an offer of proof to the Court earlier concern-
ing the admissibility of the 1979 tape recording referred
to only one meeting at Elliott’s. All $3500 material indi-
cated only one such meeting and indeed Islami himselt
indicated only one such meeting, which the prosecutors
concede (Tr. 939), Yet on cross examination, Howard at-
tested to a second such meeting allegedly occurring a week
after the first (Tr. 927) and in front of the jury the prose-
cutor nodded affirmatively, corroborating Howard’s testi-
mony that he had told this to the government in advance
of trial (Tr, 928-929). Upon this revelation, the objection
was put of record, whereupon the Court criticized and
chastised the prosecutor for the indication made in front
of the jury (Tr. 930, 939). The Court at this point, still
indicated a belief that the government conduct was inad-
vertent (Tr. 937) despite the prosecutor’s depth of exper!-
ence (Tr. 937) and the fact that omission of this testi-
mony by the government to this point clearly brought
Howard’s testimony into greater focus with Islami’s and
subject to less impeachment.
The third incident involved the suppression of a pre-
trial, post indictment photographic lineup held about three
weeks before trial wherein Jean Thompson and Barbara
Jackson identified a photo of Sonny Xheka. This testi-
mony Was perhaps the second most important corrobora-
tive piece of evidence concerning Wadie Howard’s testi-
mony. Sonny's identification was of critical importance
to the government and the circumstances of that identifica-
tion highly important to the defense. ‘The identification
although post indictment was made in secret and kept
secret by the government, knowing the defense had been
misled into believing that no pre-trial identification had
occurred. When Jean Thompson testified on direct, no
questions were asked of her regarding the photo lineup and
the area was left totally omitted. A critical piece of cor-
roborative identification was purposefully omitted from
direct by the government, aware as they were that the
56
defense had no idea of its existence or that the witness
would identify Sonny in Court. After the identification
in Court, one would expect vigorous cross examination to
impeach the circumstances and suggestiveness of thegden-
tification. For what strategical purpose they®Ould the
government allow this to occur! For the 6bvious purpose
that resulted on cross when counsel in attacking the iden-
tification, unawaredly brought out the matter from an other-
wise primed-witness who neutralized any impeaching etiect
of the time delay with the corrobrative effect of the cir-
curnstances of the lineup. The most telling corroboration
there can be is via cross examination by the defense at-
torney in attempting to impeach. In short, this was a
purposeful step. A deliberate suppression of the lineup
and a purposeful orchestration by the government avoiding
recordation and reporting of the identification and lineup
by Gorecki. This clearly does not equate with substantial
fairness and cannot be rationalized away as appropriate
trial tactic. A lineup identification with its attendant con-
stitutional issues of suggestiveness is the basic evidence at
which pretrial discovery is directed. This should have been
disclosed at the $2.04 conference.
The prejudicial effect was obvious notwithstanding the
constitutional issues attendant thereto regarding questions
of suggestiveness and of admissibility viz a viz Wade,
Gilbert and Stoval. The Court sought to cure these con-
<titutional considerations by interrupting the trial and pro-
viding voir dire examination of the witnesses into the issue
of suggestiveness. But this in no way cured the prejudice
resultant from the defense’s inadvertent corroboration and
solidification of the witnesses’ identification of Sonny. How-
ever, the Court again, incomprehensibly, found nothing pur-
poseful nor deliberate in the government's suppression of
this lineup despite Gorecki’s testimony that in such cases,
in all investigations except this one, since he has been in
law enforcement, he has never failed to make a report
concerning an identification or lineup, photo or otherwise.
57
It was a mistake not to have made one in this case and he
should have done so (Tr. 1393-1396).
The fourth area concerned cross of Barbara Jackson-
Howard. Pretrial a typewritten statement signed by her
and read under oath before the Grand Jury had been turned
over as $3500 material. No other documents were turned
over. On cross she related that in addition to the type-
written statement, she had handwritten her own statement
and signed it for agent Gorecki (Tr. 1414-70). The govern-
ment acknowledged possession of this statement and
their failure to turn it over, claiming it was identical to
the typewritten one (Tr. 1414-70 & 71). When this was
pointed out to the Court, she ordered the government to
turn over the holographic statement. It then became ap-
parent and was pointed out to the Court that the two
statements differed in one very important regard (Tr.
1414-113 & 1414-114). Barbara Jackson had testified she
had never been to the Bull and Bear and consequently had
never seen Sonny to formulate a basis for her identification
upart from these alleged meetings. In her handwritten
statement, not turned over to the defense, she knew and
had handwritten in her own hand the exact post office ad-
dress of the Bull and Bear; 111 West Jackson (Tr. 1414-
115). In the typewritten statement which was supposed
to be a verbatim copy thereof, all reference to the address
had been deleted. The fact that the witness, after dis-
claiming knowledge of the Bull and Bear other than by
reference from friends and denying having ever been there,
five vears later could have remembered or known the
precise address accurately was a serious impeaching issue
that should have been turned over which the Court prop-
erly agreed with and admonished the government that a
motion to dismiss on these grounds was still pending (Tr.
1414-123-1414-124).
The fifth incident occurred during the defense’s case and
arose incidentally when preparing Imaculatta Baki. She
indicated to defense counsel that two years ago, she had
58
been contacted by Gorecki aud shown a photograph of what
appeared to be Wadie Howard (Tr. 1666, 1667, 1668).
She told agent Gorecki that the man in the photo had never
been in the Bull and Bear and she never saw him before
(Tr. 1667). After Miss Baki had testified and objection
was noted, it was called to the Court's attention that yet
again the prosecutor had failed to disclose this information
to the defense. That it had again been inadvertently dis-
covered and that this testimony was clearly Brady type
evidence impeaching and contradictory of Howard’s testi-
mony (Tr. 1685). The government, clearly indicating a
failure, to properly realize the true impact and extent of
their obligation under Brady and perhaps accounting for
their repeated earlier failures to turn over proper Brady
material, argued strenuously at this time that, although
they were aware of Miss Baki’s testimony and had such
documents in their possession, Miss Baki’s testimony was
not Brady type evidence which they were required to turn
over (Tr. 1686). The Court however and correctly so,
ruled that this evidence was clearly Brady material and
the government had engaged in misconduct in not turning
it over (Tr. 1687). The Court however found no prejudice
in this regard and continued on. What the Court failed
to do was to conduct inquiry as to how many other witnesses
and/or ex-emplovees of the Bull and Bear had been inter-
viewed similarly and refuted Howard’s allegations. Had
this not been discovered at the 11th hour of trial, the de-
fense could have resecured from the government the cor-
porate records and conducted its own investigation.
However, one potential witness stuck out as obviously
having been contacted, the black cook who Howard claimed
Was present at all three meetings and who allegedly com-
mented about the gasoline drums. This man, Sam Ross,
was discovered and interviewed, post trial, by the defense
wherein it initially was discovered that he too had been
interviewed, shown a photo of Howard and had repudiated
Howard's story of the meeting and comments attributed
a9
to him. The government again failed to disclose to the de-
fense attorneys that they had taken a statement from
Ross.
This sixth instance of concealment was then raised in
the post trial motion requesting, in addition to other re-
lief, a hearing into additional instances and areas of sup-
pression regarding other witnesses who were similarly in-
terviwed and remained undisclosed (CL 116). At sen-
tencing, argument was heard on this motion for an evi-
dentiary hearing and an offer of proof was made to the
(‘ourt indicating what Sam Ross had revealed in his post
trial interview (Tr. 13-14). The Court denied the motion
us well as the request for a hearing. At the post trial
motion, the government denied any knowledge of the Sam
Ross interview and denied possession of any statement
from him impeaching Howard. However, in the 7th Cir-
cuit in their brief, they admitted having the statement and
its inconsistency with Howard’s testimony and that they
had misled and misinformed the Court.
The above six instances combined to effectively deny the
defendants a fair trial in conformity with their constitu-
tional right to substantial fairness and due process as well
as their right to effective assistance of counsel and full
and vigorous cross examination. Brady vy. Maryland, 373
U.S. 83 (1963), clearly obligates the government to turn
over all evidence favorable to an accused upon request
when the evidence is material to guilt or punishment. It
is clear in this case that in six separate areas important
evidence in the possession of the government was secreted
from the defense. The evidence was substantially im-
peaching and refuted the singularly critical testimony of the
key witness, Howard. It is clear from Giglio v. U.S., 405
U.S. 150 (1972) the Brady material applies to such im-
peaching evidence and it is clear in this case that specific
requests had been made for the material pre-trial and
continuously during trial. The Court had, recognizing the
critical nature of Howard's testimony and his possible
60
motivation to lie ordered the government to turn over spe-
cific impeaching documents, and only held the other motions
moot upon being assured by the government that all Brady
documents had been turned over. This assurance was less
than truthful as the record demonstrates. It is apparent
that the prosecutors were cavalier to say the least regard-
ing this Brady obligation and misunderstood and failed to
comprehend the nature and extent of obligation. For that
reason, their conduct can only be characterized as deliber-
ate and purposeful in suppressing this material. Where
Courts have found purposeful and deliberate suppression,
the degree of prejudice which must be shown to entitle
one of the requested relief is apparent and the evidence
suppressed by definition becomes highly material. (Giglio
v. U.S... supra, This is even greater whereas, in the case
at bar, the evidence withheld created serious questions of
the truthfulness of the government's key witness and sup-
pression thereof implies an attempt by the government to
prevent the defense from establishing their untruthfulness
and insulate the witness's credibility in testimony that the
government should have reason to believe was false or
at least highly suspect. The natural extension of this argu-
ment infers a known use of false evidence which for-
mulated the basis of this Court’s decision in Brady and
(riglio, supra.
This Court said in Giglio on p. 159:
. deliberate decerpiion of a Court and jurors by
the presentation of known false evidence is incompat-
ible with rudimentary demands of justice ... the same
results obtain where the state, although not soliciting
false evidence, allows it go uncorrected when it ap-
pears. ... Suppression of material evidence justifies
a new trial irrespective of good faith or bad faith by
the prosecutors ... when the reliability of a given
witness may well be determinative of guilt or innocence
non-disclosure of evidence affecting credibility
falls within this general rule.... A new trial is re-
quired if the false testimony could in any reasonable
likelihood have affected the judgment of the jury. ...
61
In Giglio, as in the case at bar, the conviction hinged on
the credibility of a co-conspirator-informant. A new trial
was ordered based solely upon a singular inadvertent
failure, to disclose a discussion concerning the witness's
future prosecution and its effect on the witness's credibility.
In the case at bar, the facts are much stronger indi-
cating repeated and deliberate violations concerning a
Witness whose credibility was at least as critical as in
frigliv.
In the case at bar, the material suppressed really fits
into all three categories of material formulated by this
Court in U.S. v. dgurs, 427 U.S. 104 (1976) and corre-
spondingly satisfies much of the tests requiring a new trial.
First as typified by Mooney v. Holahan, 294 U.S. 103, the
undisclosed evidence demonstrated that the prosecutor’s
ease included false and possibly perjurious testimony and
that the prosecutors knew or should have known this from
the very nature of the evidence suppressed. In this in-
stance, the Courts have applied a strict standard of ma-
teriality, not just because prosecutorial misconduct was
involved, but more importantly because they involved a
corruption of the truth seeking function of the trial process.
The case at bar dramatically typifies a purposeful and
repeated corruption of that process, so much so that the
defendants cannot be said to have . njoyed their right to
a fair trial.
Secondly, as illustrated by the Brady case itself, the
situation is characterized by a specific pretrial request
for the evidence. In the case at bar, at least as they re-
lated to Howard's statement, specific pretrial requests
were made for all this material. This Court in Agurs held
at 106:
‘In Brady the request was specific. It gave the
prosecutor notice of exactly what the defense desired.
When the prosecutor receives a specific and rele-
vant request, the failure to make any response is
seldom, if ever, excusable.”’
62
In such cases, the standard is that if the suppressed evi-
dence could have affected the outcome of the trial, a new
trial is required. In the case at bar, the nature of the
evidence suppressed coupled with the other serious evi-
dentiary problems and errors raised in this case, quite
apparently could have resulted in a contrary verdict.
The third situation involves a general request for all
exculpatory material in the possession of the prosecution
necessitated by the defense’s lack of knowledge of its
specific existence or identity. The duty to disclose in re-
sponse to such a general request, derives from the obvi-
ously exculpatory character of certain evidence in the hands
of the prosecutor, U.S. v. Agurs, supra at p. 107. Con-
cededly, some of the material requested, Baki’s statement
and the cook’s statement for example, fall within this
category. However, these witnesses clearly are so obvi-
ously supporting of innocence and contradictory of Howard
sO as to create an obvious duty of disclosure. Further-
more, if evidence is highly probative of innocence, as here,
the prosecutor is presumed to recognize its significance
even if he has actually or claims to have overlooked it,
IS. v. Giglio, supra; U.S. v. Agurs, supra. In sueh in-
stances, if the suppressed evidence could create a reason-
able doubt that did not otherwise exist, constitutional error
has occurred. In this case, based upon the marginal
evidence presented and the contradictory, questionable
testimony of Howard, it is impossible to say that this
suppressed evidence, particularly the cook's testimony,
added to and corroborating Miss Baki, in refuting the
payment meetings at the restaurant could not have, in
fact, raised a reasonable doubt of guilt. Although the
Baki material was discovered during trial as were the other
incidents, the cook’s testimony was not discovered until
after the trial and never presented to the jury.
In addition, it must also be remembered that we are
dealing with more than just an inadvertent, isolated sup-
pression of a single item. We have here a continuing pat-
63
tern of suppression occurring throughout the trial which led
the Court to comment that she believed non-disclosure to
constitute government misconduct. In such circumstances,
even if the withheld evidence is not conclusively material
resulting in apparent prejudice, non-disclosure of such in-
formation is reversible error when the prosecutor's failure
to reveal the evidence was not in good faith but was de-
liberate, purposeful or in bad faith. For this reason alone
the Court should have granted the motion to dismiss or
at least granted a hearing.
Thus, from the character of the purposeful and repeated
Violations of disclosure, the fact that the defense ultimately
uncovered and aired the areas of suppression at least re-
garding the first five areas of suppression, does not remove
the prejudice or obviate the error. Prejudice must be pre-
sumed around these facts. It is diffieult to fathom how
the defense would have benefited or altered its presentation
having properly been afforded their material pretrial.
In situations where the three arguments of a valid Brady
complaint are demonstrated, (1) prosecution suppression
of evidence; (2) which is favorable and; (3) material to
the defense, unless the vecord as constituted shows con-
clusively that the relief Sought ix not available, an evi-
dentiary hearing must be held pursuant to 28 U.S.C. $2255.
In the case at bar, the relief sought is not patently un-
available and the Court should have held an evidentiary
to determine whether in fact the cook’s testimony was
suppressed and whether or not it comported with the offer
of proof made substantially corroborating Miss Baki and
refuting and questioning the truthfulness of Howard’s
testimony. If these proved true, clearly the defense was
entitled to a dismissal or at the very least a new trial
for such testimony in the government’s possession must
provide yet another inference to the government that How-
ard’s testimony was untruthful and this factor on top of
all the others could have substantially effected the jury’s
consideration of the defendant’s guilt.
Ait
For the above reasons, the appellants were not afforded
a fair trial, were denied due process of law and a reversal
is required or at least a remand to conduct such a hearing.
CONCLUSION
For these reasons a Writ of Certiorari should issue to
review the judgment and opinion of the 7th Cireuit Court
of Appeals.
Respectfully submitted,
SERPICU, NOUVELLE, DVORAK
& NAVIGATO, LTD.
OOOO OO EERE EEO EEE EEE EE EEE EEE EERE EEE EEE EERE EE EEE HEHEHE EEE O®
Ropert A. NovELLE
APPENDIX
App. 1
in the
United States Court of Appeals
Bor the Seventh Cirrntt
No. 82-1207
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
Vv,
SADIK XHEKA and BEHA XHEKA,
Defendants-A ppellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 81 Cr 370—Susan Getzendanner, Judge.
ARGUED NOVEMBER 3, 1982—DECIDED APRIL 6, 1983
Before PELL and CUDAHY, Circuit Judges, and BONSAL,
Senior District Judge.*
PELL, Circuit Judge. Defendants appeal convictions
on charges stemming from a fire that destroyed their
downtown Chicago restaurant. Sadik “Sonny” Xheka and
Beha “Billy” Xheka were found guilty by a jury of con-
spiracy to damage or destroy a building used in inter-
state commerce by means of an explosive in violation of
18 U.S.C. §§ 371, 844(i). Sonny was also convicted of the
substantive offense of violation of section 844(i), while co-
defendant Chris Callas was acquitted on both counts. Be-
* Senior District Judge Dudley B. Bonsal of the Southern Dis-
trict of New York is sitting by designation.
App. 2
cause of the nature of the case, and the plethora of claims
ee by defendants, we will review the facts in some
etail.
I
We must view the evidence in the light most favorable
to the Government. Glasser v. United States, 315 U.S. 60,
80 (1942). The evidence presented at trial, if believed by
the jury, proved that the following events took place. On
July 1, 1976, Wadie Howard, a well-known arsonist, met
with Chris Callas in a bar. Howard and Callas had been
acquainted for many years. Callas told Howard that he
had a friend, named Sonny, who had a problem that
Howard could probably solve. Callas asked Howard to
pass along some money if he were rewarded for his ef-
forts. Callas did not tell Howard what the nature of Son-
ny’s problem was, but did give him the address of the
Bull-n-Bear Restaurant, the restaurant owned by the
Xheka brothers.
Two days after this conversation Howard drove to the
Bull-n-Bear and asked the bar maid for Sonny. Sadik
Xheka appeared and Howard introduced himself and ex-
plained that he had been sent by Callas. Before talking
with Howard Sonny made a brief telephone call. After
the call Sonny offered Howard a drink and showed him
around the restaurant. Sonny and Howard proceeded to
the lower level cooking area where they met Sonny’s
brother, Billy. Sonny asked Howard to name a price
for destroying the premises. Billy and a cook were
standing a few feet away during this conversation.
Howard said that he would burn the restaurant for $5,-
000 and expenses. Sonny accepted the offer, stating that
“I can afford that because I have a good insurance policy
= an interruption clause in my insurance policy.”
oward was given $400 for expenses and agreed to
return at a ane Sate Sp coat Sp Se ee
$5,000. Billy, who understood and spoke English, said
nothing throughout this discussion.
On July 10 Howard returned to the Bull-n-Bear and
entered lower level office with Sonny and Billy. Son-
App. 3
ny gave him an envelope containing $2,500 in cash and
said that the restaurant had to be totally destroyed by the
first of the month. Once again Billy did not participate in
the conversation. On July 21 Howard returned to receive
the final $2,500. Billy and the cook were present when
Howard counted the money. Billy said nothing during the
transaction.
The following day Howard went to a junk-yard and
urchased two 55-gallon drums, which fortuitously were
abeled as fruit juice concentrate. On July 28 Howard
filled the drums with gasoline and then drove to the Bull-
n-Bear. The maintenance staff at the receiving dock
would not allow Howard to deliver the drums to the
restaurant, so he enlisted Sonny’s aid. The two men ob-
tained a cart and wheeled the containers into the cooking
area. Billy and the cook were in the kitchen, and the cook
joked that he had never seen cooking oil delivered in that
fashion before. On Sonny’s instructions Howard placed
the drums in the wine cellar.
Howard returned to the Bull-n-Bear Saturday night,
July 24, and met with Sonny. Sonny gave Howard a key
to the restaurant and left. On direct examination Howard
testified that he also left, but on cross-examination
Howard stated that he had entered the Bull-n-Bear and
removed twelve cases of liquor, apparently on the belief
that it would be put to better use if he took it than if it
were destroyed along with the restaurant.
On July 25, at approximately 10:30 p.m., Howard
returned to burn the restaurant. He had not informed
Sonny or Billy that this was the date he had chosen for
the fire. A few minutes after Howard entered the
restaurant the building engineer arrived. Howard let
him in and explained that was the “clean-up man.”
The hor grenad examined the air-conditioning and left.
How spread hand-towels throughout the restaurant
and poured out the line. While Howard was prepar-
ing the fire, Sonny, Billy, and a white-haired man were
sitting in the office playing cards. When Howard finished
pouring out the gasoline Sonny suggested to his fellow
App. 4
cardplayers that they leave. Sonny removed some money
and insurance papei'ss from the safe, and the three men
left the building. Howard then placed one of the gas-
soaked towels next to the door, lit the end of the towel and
stepped out into the street. As Howard walked toward his
car he heard an explosion and breaking glass.
A woman parked across the street from the Bull-n-
Bear saw Howard leave the restaurant, and then heard
an explosion and saw flames coming from the building.
The building engineer testified that he had entered the
restaurant twice that night and had seen Howard. The
= spotted the fire at 12:30 a.m. and pulled the fire
alarm.
The fire investigators determined that the fire had
been purposely set. Howard was immediately suspected
when his description was given by the engineer and the
woman who had seen him leave the fire. When inter-
viewed Sonny denied any knowledge of Howard or of the
55-gallon drums found in the restaurant. After Howard
re arrested, however, Sonny refused to sign a com-
plaint.
Howard was arrested on July 26. He called his wife,
Barbara Jackson, and told her to call Sonny and arrange
a meeting. Jackson was to bring a photograph of Howard
as identification and obtain money for bail and attorney’s
fees from Sonny. Jackson, accompanied by a friend, Jean
Thompson, met with Sonny. Because of some confusion
regarding the amount of money Howard needed, Jackson
and Thompson met with Sonny on two more occasions.
Howard was rel@@@d on bond on July 28. Shortly
thereafter he met with Sonny at a restaurant owned by
Shaban Islami. Howard asked for an additional $2,000
' The testimony throughout the trial was contradictory on
many details. We will only note those that are relevant and
assume, as we must, that the jury resolved the contradictions in
the Government's favor. We note, additionally, that most of the
inconsistencies were minor and of no real relevance.
App. 5
for attorney’s fees. Islami gave Sonny a bundle of cash
from which Sonny gave Howard the needed money. This
scenario was repeated a week later when Howard ex-
tracted $750 from Sonny for “pocket money.”
In December of 1976 the Xhekas filed suit against their
insurance company to obtain over $800,000 in compen-
satory damages. That suit was still pending at the time of
trial. Records from the Bull-n-Bear revealed that the
restaurant had suffered an actual operating loss of
almost $25,000 between March and June of 1976.
The final piece of evidence offered by the Government
was a tape recording of a conversation that took place in
1979 between Chris Callas and Howard, who was
cooperating with the Government. The gist of the conver-
sation, which will be discussed in detail later, was that
Callas thought that the Xhekas should cooperate with
Howard so that they could obtain the insurance payment.
Defendants did not testify, but they did present several
witnesses. Imaculotta Baki, bookkeeper at the Bull-n-
Bear, testified that she had been in the restaurant when
the meetings allegedly took place and that Howard had
never been in the restaurant. As Callas was acquitted we
need not discuss his witnesses, other than to note that one
witness testified that the bar in which Howard claimed to
have met with Callas had been demolished before July of
1976.
II
Defendants’ first contention is that 18 U.S.C. § 844(i)
is inapplicable to the facts of this case. In pertinent
part section 844(i) provides punishment for “[wJhoever
maliciously dam or destroys ... by means of an ex-
plosive, any building . . . used in interstate or foreign
commerce.” “Explosive” is defined in section 844(j) as:
gunpowders, powders used for blasting, all forms of
high explosives, blasting materials, fuzes ...
detonators, and other detonating agents, smokeless
powders, other explosive or incendiary devices
App. 6
within the meaning of paragraph (5) of section 232 of
this title, and any chemical compounds, mechanical
mixture, or device that contains any oxidizing and
combustible units, or other ingredients, in such
proportions, quantities, or packing that ignition by
fire... may cause an erplosion. (emphasis added)
The Government proceeded under the theory that the
gasoline spread throughout the restaurant, and the fumes
it produced, constituted a chemical compound or me-
chanical mixture possessing the requisite character-
istics under paragraph (j). In support of this theory
the Government presented expert testimony, by stipu-
lation, that “gasoline is a chemical compound, mechani-
cal mixture or device that contains combustible units
or other ingredients in such proportions, quantities or
packing that ignition by fire... may cause an explosion.”
Evidence was also presented to prove that ignition of
the gasoline-soaked trailers had in fact caused an ex-
plosion,
Defendants argue that, while their actions may con-
stitute arson in violation of state law, gasoline poured
throughout a building does not fall within the statutory
definition of “explosive.” A similar contention was re-
jected by this court in United States v. Agrillo-Ladlad,
675 F.2d 905 (7th Cir. 1982). In Agrillo-Ladlad defen-
dants had destroyed a commercial printing company by
spreading naptha-soaked newspaper throughout the
building. The process of preparing the fire took two
hours, allowing the building to fill with naptha fumes.
When ignited the fumes exploded. At trial the Govern-
ment presented expert testimony that naptha vapors and
air form a potentially explosive mixture. After analyzing
the history and language of the statute we concluded that
this situation was covered by section 844(j).
The legislative history indicates that Congress in-
tended to define broadly the term “explosive” for
purposes of the malicious use of explosives section of
the Organized Crime Control Act; that Congress
App. 7
realized that state and federal jurisdiction would
overlap in certain instances, such as arson cases; and
that simple devices using common substances could
be used to create an explosive within the meaning of
the Act. 675 F.2d at 911.
The Eighth, Tenth and Eleventh Circuits have reached
the same conclusion when confronted with facts almost
identical to those before us today. L/nited States v. Hepp,
656 F.2d 350 (8th Cir. 1981) (mixture of methane, a
natural gas, and air held to be mechanical mixture
within the scope of section 844(j)); United States v.
Poulos, 667 F.2d 939, 942 (10th Cir. 1982) (“any person
would conclude that the pouring of gasoline around a
room with the intention of igniting it or the fumes with
an incendiary device was prohibited by sections 844(i)
and (j)”); United States v. Hewitt, 663 F.2d 1381 (11th Cir.
1981) (10 gallons of gasoline poured down a chimney and
ignited is a chemical compound under section 844(j)). In
United States v. Gere, 662 F.2d 1291 (9th Cir. 1981), the
Ninth Circuit rejected this broad interpretation of the
term “explosive.” In Gere the court had not been pre-
sented with any expert testimony and did not analyze
the legislative history of sections %44(i) and (j). For these
reasons we found Gere unpersuasive when we decided
Agrillo-Ladlad, and we find it unpersuasive now.
Similarly, we reject the reasoning of United States v.
Birchfield, 486 F. Supp. 137 (N.D. Tenn. 1980).
It is clear that the gasoline poured throughout the Bull-
n-Bear was an explosive within the meaning of section
844(j). Wadie Howard testified that preparing the fire
took several hours, providing plenty of time for the gas-
oline fumes to mix with the air and form an explosive
mixture. As the court noted in United States v. Poulos,
667 F.2d at 942, “It is common knowledge that gasoline is
highly combustible and capable of exploding. The gov-
ernment’s expert witness testified to the fact that gas-
oline can be an explosive, and it does fit under this
statute.” We hold that the gasoline and gasoline-soaked
App. 8
towels, which exploded when ignited, fall within the
proscription of 844(i).*
Ill
Defendants argue that they were denied a fair trial
due to prosecutorial misconduct, bias on the part of the
trial judge and undue limitations placed upon their
cross-examination of Howard. We will examine these
contentions seriatim.
A. Prosecutorial Misconduct.
The charge of misconduct by the Government stems
from the alleged suppression of exculpatory evidence by
the prosecution. In Brady v. Maryland, 373 U.S. 83
(1963), the Court held that “the suppression by the pros-
ecution of evidence favorable to an accused upon request
violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. at 87.
Defendants made a general request for Brady material,
and now allege that the prosecution failed to fulfill its
obligation under Brady in the following six instances:
(1) One week before trial Wadie Howard informed
the prosecutors that he had taken twelve cases of liquor
from the Bull-n-Bear the night before the fire. The pros-
ecutors did not inform defendants of this, nor did they
bring it out during direct examination of Howard.’ Dur-
2 Our conclusion that “explosive” is to be read broadly is
bolstered by the recent amendment of section 844, which is in-
tended “to clarify the applicability of offenses involving ex-
plosives and fire.” (emphasis added) As amended section 844(i)
reads: “Whoever maliciously damages or destroys... by means
of fire or an explosive, any building . . . used in interstate or
foreign commerce” shall be guilty of the proscribed offense.
Anti-Arson Act of 1982, Pub. L. 97-298, 96 Stat. 1319 (1982).
* The Government contends that this was unintentional. The
record reveals, however, that Howard was led away from this
(Footnote continued on following page)
App. 9
ing direct examination of the fire investigators, which
took place before Howard testified, the prosecution elic-
ited that liquor supplies in the Bull-n-Bear were low at
the time of the fire, with the clear implication that
defendants had removed it themselves before burning
the building. It was only during cross-examination of
Howard that the true explanation came out.
(2) One week before trial Howard informed the pros-
ecutors that he had met with Sonny a second time at
Islami’s restaurant. This was also not brought out dur-
ing direct examination, but was revealed on cross-
examination of Howard. Islami testified that Howard
came to his restaurant only once.
(3) Three weeks prior to trial a Government agent
showed Barbara pre ies a photo array from which she
identified Sonny as the man she had met. Jackson
initialed the back of the photograph. The agent then
went to Jean Thompson’s place of employment and
showed her the same photographs. Thompson picked out
Sonny’s picture and initialed the back. Defense counsel
were provided a photostat copy of the front of the photo
array, but did not avail themselves of the opportunity to
view the originals or ask whether the women had made
an identification. During direct examination Thompson
made a positive identification of Sonny, but no mention
was made of the previous photographic identification.
On cross-examination Thompson was asked how she
could be positive that Sonny was the right man when
she had not seen him for several years. Thompson re-
plied that she had previously identified his photograph.
Defense counsel objected to Thompson's identification
because they had not been informed of the pre-trial
3 continued
subject during the direct examination. The motive of the
prosecutor, regardless of how this incident is characterized, is
irrelevant. “If the suppression of evidence results in con-
stitutional error, it is because of the character of the evidence,
not the character of the prosecutor.” United States v. Agurs,
427 U.S. 97, 110 (1976).
App. 10
identification. The judge excused the jury and held a
voir dire to determine whether the photo array was
unduly suggestive. Jackson testified that she had called
Thompson after the agent left, but before he arrived at
Thompson's workplace, and told her about the identifi-
cation. Thompson, however, denied receiving this phone
call or knowing that Jackson had identified Sonny. The
court determined that Thompson had not seen Jackson's
initials before choosing Sonny’s picture, but did not
resolve whether Thompson had been aware that Jackson
had made an identification. The court ruled that the
array was not suggestive and allowed the in-court iden-
tification to stand.
(4) Prior to trial the Government provided defend-
ants with a typewritten copy of a statement made by
Barbara Jackson, but did not deliver the handwritten
copy. The statements differed in that the handwritten
version contained the address of the Bull-n-Bear while
the typed copy did not. Jackson claimed never to have
been to the restaurant. The defense was provided with
the handwritten statement during trial and questioned
Jackson about her knowledge of the address.
(5) Imaculotta Baki was interviewed by a Govern-
ment agent two years prior to trial and gave a state-
ment to the effect that Howard had never been in the
Bull-n-Bear during the times he claimed to have met
with the Xhekas. The defense was not provided with
this statement, but did discover the incident when pre-
paring Baki for trial.
(6) After trial defendants claimed to have discovered
the cook Howard had referred to in his testimony, a
man named Sam Ross. They made an offer of proof that
Ross would testify to being interviewed by a Govern-
ment agent and repudiate Howard's story.
The arguments advanced by defendants concernin
the first five of these instances reveal a misunderstand-
ing of Brady. We dealt with a similar misunderstanding
in United States v. McPartlin, 595 F.2d 1321 (7th Cir.
1979), cert. denied, 444 U.S. 833, in which the Govern-
ment during its opening statement first revealed that its
App. 11
principal witness had embezzled large amounts of money
from defendants. On appeal, defendants claimed that
Brady required disclosure of this information before
trial. We rejected this argument.
We note initially that Brady and its successor,
United States v. Agurs, 427 U.S. 97 (1976), address
a thoroughly different problem than the one before
us. The concern of Agurs and Brady is whether the
suppression of exculpatory material until after trial
requires that a new trial be given so that the evi-
dence may be considered. The Court in Agurs char-
acterized the situations to which Brady apply as
those involving “the discovery after trial, of infor-
mation which had been known to the prosecution
but unknown to the defense.” 427 U.S. at 103
(emphasis added).
* 8 *
The defendants here, however, do not complain of
a total suppression of favorable evidence but merely
attack the timing of the disclosure of such evidence.
The appropriate standard to be applied in a case
such as this is whether the disclosure came so late
as > prevent the defendant from receiving a fair
trial.
595 F.2d at 1346. We have consistently followed this
approach when the disclosure comes during trial, see
nited States v. Allain, 671 F.2d 248, 255 (7th Cir.
1982); United States v. Zipperstein, 601 F.2d 281, 291
(7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980).
While we do not condone the Government's conduct,
especially as to avoiding the theft of the liquor during
direct examination of Howard, we fail to see how the
defense was prejudiced. Ali of the information became
available to defendants during trial, and defense counsel
was able to make full use of whatever value it had.
If anything, the revelation of various factors on cross—
App. 12
rather than direct—examination made Howard look less
credible than he otherwise would have appeared. This
situation is similar to that presented in United States
vw. Johnson, 487 F.2d 1318, 1324 (5th Cir. 1974), cert.
denied, 419 U.S. 825, in which the prosecution attempted,
unsuccessfully, to hide that a bargain had been made
with a Government witness. The court rejected de-
fendant’s Brady claim. “In these circumstances we
cannot conclude that the prosecution’s initial lack of can-
dor deprived appellant of due process. We are not, how-
ever, favorably impressed by the prosecution’s conduct.”
Defendants, although making rhetorical allegations of
pervasive prejudice, raise only one instance in which the
presentation of their defense was harmed by the timing
of the disclosures. They claim that had they been aware of
Thompson's pre-trial identification of Sonny they would
not have asked her how she could recognize Sonny after
several years, and the damaging revelation that she
had already identified Sonny’s photograph would not
have been made. This is not the type of prejudice to
which we referred in McPartlin. There is no require-
ment that the Government disclose inculpatory informa-
tion so the defense will not accidentally bring it out
during cross-examination.‘ If the Government was under
a duty to disclose the existence of the photographic iden-
tification it was because the defense should be allowed
to explore the possible suggestiveness of the identifica-
tion, which might lead to discovery that the in-court
identification was tainted and should be suppressed. In
this case, however, the possibility that the photographic
line-up was suggestive was fully explored during voir
dire and resolved against defendants. Defendants have
not raised the issue of suggestiveness on appeal and we
decline to review the court’s findings on this.
* Of course, if the damaging information is contained in a
statement made by a witness prior to trial the Government
may be required to turn it over to the defense after the witness
has testified. 18 U.S.C. § 3500. In none of the instances com-
plained of by defendants did the Government possess a state-
ment discoverable under section 3500.
App. 13
The sixth claimed Brady violation is more trouble-
some. Defendants aliege that after trial they discovered
that Sam Ross, the cook Howard claimed was pres-
ent during many of the meetings with the Xhekas,
would testify that he never saw Howard or the drums of
gasoline. Ross would also testify that he provided the
Government with this information several years prior to
trial. The Government makes several arguments as to
why no error occurred. At the outset the Government
contends that mere representations by a defense attor-
ney as to the existence of suppressed evidence are insuf-
ficient to raise a Brady claim and that the proper
avenue of relief is a request for a new trial from the dis-
trict court when defendants have obtained an affidavit
proving the truth of their claim. In the context of this
case this argument has no merit. The Government at-
tached to its brief a copy of interview notes made when
Ross was interrogated by a Government agent. The
notes reveal that Ross informed the Government that he
was employed as a cook at the Bull-n-Bear until the fire,
that he worked from 6 a.m. until 3 p.m. on weekdays,
and that he had never seen Howard or the drums of
gasoline. This belies any claim that Ross is a figment of
defendants’ imagination. As the Government has not
suggested that Ross was not the only cook meeting How-
ard’s description, we will assume that he is the missing
witness.
The Government next contends that this was not
Brady material because Ross got off work at 3 p.m.,
while Howard testified that he met with the Xhekas at
4 p.m. This ignores Howard’s claim that he spoke with
the cook when he delivered the drums of gasoline at 9
a.m. on July 23, 1976, which was a weekday. Ross’s
statement flatly contradicts this tale. Furthermore, that
Ross was not at work during the time Howard places
him at the restaurant for the other meetings impeaches
Howard's testimony. That Ross’s testimony would have
aided defendants is beyond dispute, though this does not
necessarily require that the Government’s failure to pro-
— defendants with this material will result in a new
trial.
App. 14
The Government's main contention is that defendants
have no one but themselves to blame for the nonappear-
ance of Ross at trial. The basis of this claim is that
defendants “had equal or superior knowledge of Ross’
existence. He was, after all, their employee....A
defendant has an obligation to obtain testimony he
Knows about or that was fully available to him.” The fal-
lacy of this argument is that defendants, even if they
can be held to know of Ross's existence some years after
he left their employ, had no knowledge of what testi-
mony he could give. In all of the cases cited by the
Government the defendant was fully aware of the con-
ter’ of the testimony that the witness could have given.
T’« is not true here; only the Government was aware
tha. Ross could give exculpatory testimony. Under these
circumstances defendants have not waived their Brady
claim simply because they did not ferret out every
potential witness. While the Government is under no
duty to seek out witnesses such as Ross, having found
him it was under an obligation to inform defendants of
the exculpatory evidence he could provide.
We do not approve of the Government’s action in with-
holding this information. We do not believe, however,
that this misconduct warrants reversal. Brady requires
that defendants be given a new trial if a “material”
piece of evidence was not presented to the jury due to
the Government's failure to reveal its existence to the
defense. When the defense makes only a general request
for Brady material, as was the case here, the test of
materiality is whether “the omitted evidence creates a
reasonable doubt that did not otherwise exist.” United
States v. Agurs, 427 U.S. 97, 112 (1976). In Cannon v.
Alabama, 558 F.2d 1211 (5th Cir. 1977), cert. denied, 434
U.S. 1087 (1978), the court noted that:
Applying this standard requires an analysis of the
evidence adduced at trial and of the probable im-
pact of the undisclosed information. In this context
we cannot merely consider the evidence in the light
most favorable to the government but must instead
evaluate all the evidence as it would bear on the
deliberations of a factfinder. 558 F.2d at 1213-14.
App. 15
The present case, although perhaps close, is unlike
Cannon, in which the suppressed evidence clearly dam-
aged the Government's already weak case by providing
a positive identification of someone other than defendant
as the perpetrator. Had Howard been otherwise unim-
peached we might well have been inclined to grant a
new trial, but in point of fact the jury chose to believe
Howard despite a wealth of impeaching evidence. De-
fense counsel elicited many previous instances of un-
truthfulness from Howard as well as his prior criminal
background. In addition, defendants presented Ms. Baki,
who testified that Howard was not present in the res-
taurant. Ross’s expected testimony simply repeated this
evidence, but did not provide any other explanation as
to why Howard would set fire to the Bull-n-Bear, which
it is uncontested that he did. Although one can speculate
as to why Howard would burn the Xhekas’ restaurant
without their permission the jury chose to believe the
most obvious explanation for Howard's actions, that
defendants hired him to destroy the restaurant. We are
not convinced that the addition of Ross’s testimony to
the existing abundance of impeaching evidence creates
a reasonable doubt.
B. Judicial Bias
We need spend little time discussing the claim that
the actions of the trial court deprived defendants of a
fair trial. Of the numerous allegations made regarding
conduct by
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