# Petition — Xheka v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 993

## Text

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. 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 the trial court that defendants allege im-
properly influenced the jury none have merit. Defend-
ants complain that the court’s questioning of Jean
Thompson demonstrates “a clear and unambiguous indi-
cation of the court’s attitude and bias.” Because this

uestioning took place outside the presence of the jury,
the claim is meritless. Defendants also claim that the
court, over objection, permitted Howard to remain in
the courtroom while the relevance of impeaching evi-
dence was discussed, thus allowing Howard to formu-
late explanations for previous inconsistent statements.
We have examined the record in this case with care and
can only conclude that this case is based either upon a

App. 16

misrepresentation or misunderstanding of what actually
took place. On none of the transcript pages cited by
defendants, or anywhere else for that matter, did the
judge refuse to exclude Howard while impeaching evi-
dence was discussed. Several of defendants’ remaining
arguments, which we will not discuss, are based on sim-
ilar misconstructions of the proceedings during trial.

Defendants also make a catchall complaint concerning
the court’s “impatience with and disdain for the defense
and defense counsel.” To the extent that this occurred it
was invited by counsel, who insisted upon mentioning
the maximum penalty faced by the Xhekas despite the
court’s admonishment not to do so. Similarly, defense
counsel sought to impeach Howard by demonstrating
that Howard had pleaded “not guilty” to a criminal
charge of which he was in fact guilty. This was clearly
improper questioning and understandably drew criti-
cism from the court. We also note that, regardless of the
cause of any impatience or disdain, no harm was done.
“The trial was long and the incidents relied on by
petitioners few. We must guard against the magnifica-
tion on appeal of instances which were of little impor-
tance in their setting.” Glasser v. United States, 315
U.S. 60, 83 (1942).

C. Limitations on cross-eramination of Howard

Defendants argue that “the court continuously and
consistently, during the course of this trial, impeded
effective permissible cross-examination, refused to exer-
cise properly judicial discretion and hampered defense
counsel in their attempts to put the weight of Wadie
Howard’s testimony and his credibility to the test.” In
support of this claim defendants have offered little more
than citations to pages of the transcript. Thus, unen-
lightened by the briefs as to the exact nature of the
impermissible restrictions placed upon the cross-exam-
ination, we must rely upon our own examination of the
record to evaluate this argument.

It is undisputed that a trial court has discretion to
control the conduct of cross-examination. Smith v. IIli-

App. 17

nois, 390 U.S. 129, 132 (1968); Alford v. United States,
282 U.S. 687, 694 (1931). We recently noted that “a trial
court has wide discretion to limit cross-examination,
with the standard on review for the adequacy of cross-
examination on bias or motive being whether the jury
had sufficient information to make a discriminating
appraisal of the witness’s bias or motive.” L/nited States
, Hinton, 683 F.2d 195, 200 (7th Cir. 1982).

It is clear from our examination of the record that the
trial court did not abuse its discretion in limiting the
scope of cross-examination. Few restrictions were placed
upon defense counsel, and those that were—such as the
ee on mentioning the maximum penalty faced

y Howard, and the Xhekas—were proper. Defense
counsel elicited a great deal of impeaching evidence
from Howard, including past crimes and lies. The jury
“had sufficient information to make a discriminating
appraisal of the witness’s bias or motive.”

Despite the wide latitude granted to defendants in
their examination of Howard they urged the trial court
to allow the introduction of extrinsic evidence of How-
ard’s past bad acts. As the evidence was only probative
of Howard's credibility the court properly excluded it
under Rule 608(b) of the Federal Rules of Evidence,
which provides that: “Specific instances of conduct of a
witness, for the purpose of attacking or supporting his
credibility, other than conviction of a crime as provided
in Rule 609, may not be proved by extrinsic evidence.”
The court’s decision was correct.

IV

Defendants challenge the admissibility of the tape made
of the conversation between Howard and Callas. The
conversation took place during July of 1979 at a bar in
Chicago. By this time Howard was cooperating with the
Government in the investigation of the fire. The crux of
the conversation was as follows:

Howard: Have you got a minute where we can talk
right quick? The Government come back. I been ors
pot S touch with Sonny. Have you heard anything

m?

App. 18

Callas: I heard he had a restaurant somewhere, I
hear. Like I say, if you really want to know, I can find
out, I can find out for you.

*_ + + *®

Howard: Give me a Schlitz. You know the worst
thing that you ever did in life to me is introduce me to
this guy. This son-of-a-bitch.

Callas: What now? What are they doing to you now?
They welch? The cocksuckers!! They should cooperate
with you if they want to get their money. They should
cooperate with you. Then leave me your number and
I'm going to try to, for sure, I’m going to try hard. I got
this girl that’s coming back in a few weeks. She knows
them.

e * * *

Howard: Yes. I want to talk to ‘em.
Callas: Do they get that money?

Howard: Yes, ah no. I don’t, I don’t think so yet. It’s
still pending.

Callas: Can they get the money without you?
Howard: I don’t think so.

Callas: All right. I think, I think I’m gonna talk to
the girl for sure.

The court admitted this conversation against all of the
defendants as substantive evidence under the so-called
“coconspirator exception” to the rule against hearsay
testimony. Fed. R. Evid. 801(dX2\E). Under Rule 801
(dX2)(E) a 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 further-
ance of the conspiracy.” A statement is admissible
under this rule only when the Government has estab-
lished by a preponderance of the evidence, nt
of the statement itself, that (1) a conspiracy existed, (2)
that defendants and the declarant were members of
conspiracy, and (3) that the statement was made in the
course of the conspiracy. United States v. Santiago, 582

App. 19

F.2d 1128 (7th Cir. 1978); see also United States v. Ken-
dall, 665 F.2d 126, 131 (7th Cir. 1981), cert. denied, 102
S.Ct. 1719; United States v. Gil, 604 F.2d 546 (7th Cir.
1979). The Government must also demonstrate that
“some reasonable basis exists for concluding that the
statement furthered the conspiracy.” United States v.
Mackey, 571 F.2d 376, 383 (7th Cir. 1978); United States
v. Kendall, 665 F.2d at 133.

Defendants urge that the court erred in admitting the
tape in that (1) the conspiracy ended as soon as the fire
was set, and (2) Callas was not a member of any conspir-
acy at the time of the conversation. Defendants do not
question that the Government introduced proof estab-
lishing by a preponderance of the evidence the existence
of a conspiracy to burn the Bull-n-Bear. Their conten-
tion is that once this goal was accomplished the conspir-
acy came to an end and any statements later made by
the conspirators are inadmissible under 801(d\2)(E).
This argument rests upon a misconception of the Gov-
ernment’s case.

The crucial concern “is the scope of the conspiratorial
agreement, for it is that which determines .. . the dura-
tion of the conspiracy.” Grunewald v. United States, 353
U.S. 391, 397 (1957); see also United States v. Walker,
653 F.2d 1343 (9th Cir. 1981), cert. denied, 102 S.Ct.
1253 (1982); United States v. Hickey, 360 F.2d 127, 141
(7th Cir. 1966), cert. denied, 385 U.S. 928. Defendants
correctly observe that an agreement to conceal a com-
pleted crime does not extend the life of a conspiracy.
Grunewald v. United States, 353 U.S. at 405; Krulewitch
v. United States, 336 U.S. 440 (1949). From this defend-
ants argue that an agreement to conceal the true cause
of the fire does not breathe life into this otherwise dead
conspiracy. Had defendants conspired to destroy the
Bull-n-Bear simply for the joy of destruction this ar
ment would have merit, but that was not the case. he
Government alleged in the indictment that “It was also
an object of the conspiracy that [the conspirators] con-
ceal . . . the true circumstances surrounding the burn-
ing of... the Bull-n-Bear Restaurant, Inc., in order to
facilitate future claims made to the insurer of the Bull-n-

App. 20

Bear.” (emphasis added). At trial the prosecution estab-
lished the poor financial condition of the business, Son-
ny’s claim that he could afford to hire Howard because
the restaurant was insured, and that the Xhekas were
still seeking payment from the insurance company. All
of these factors support the theory that recovery of the
insurance proceeds was the primary goal of the con-
spiracy. Indeed, one would be hard pressed to think of
any other reason the Xhekas would have for destroying
their business.

The goal of obtaining money from the insurance com-
pany, which requires that the true nature of the fire
remain concealed, distinguishes this case from those
relied upon by defendants. In Grunewald the Supreme
Court made clear that while an agreement to conceal
the crime once the goal has been attained does not
lengthen a conspiracy, “a vital distinction must be made
between acts of concealment done in furtherance of the
main criminal objectives of the conspiracy, and acts of
concealment done after these central objectives have
been obtained.” 391 U.S. at 405. By way of illustration
the Court distinguished the situation in which kid-
nappers conceal their crime (and their victim) while
waiting for = of the ransom from that in which
the ransom has been paid and the kidnappers continue
to conceal their involvement to avoid punishment. In
the former, but not the latter, the acts of concealment
further the object of the conspiracy—obtaining money—
and result in lengthening its duration. The situation
here is directly analogous to kidnappers waiting for the
fruit of their crime to materialize. The conspiracy con-
tinues until defendants obtain the insurance money or
abandon their quest. See also United States v. Walker,
653 F.2d 13438, 1349 (9th Cir. 1981), cert. denied, 102
S.Ct. 1253 (1982); United States v. Knuckles, 581 F.2d
305 (2nd Cir. 1978), cert. denied, 439 U.S. 986.

We also reject defendants’ contention that there was
insufficient evidence to tie Callas to the conspiracy at
the time of the conversation. The Government’s evidence
demonstrated that Callas directed Howard to the Xhe-
kas and expected some money in return. When Howard

App. 21

introduced himself to Sonny, Sonny went and made a
brief telephone call. It is a fair inference that the call
was to Callas to verify Howard's credentials. Once a
member of the conspiracy Callas remained a conspira-
tor until he took affirmative steps to withdraw from the
agreement. Even if Callas did nothing to further the
purpose of the conspiracy after he sent Howard to see
defendants, and even if Callas had, understandably,
given up any hope of receiving money from Howard, he
remained a conspirator. “Mere cessation of activity in
furtherance of the conspiracy does not constitute with-
drawal.” United States v. Phillips, 664 F.2d 971, 1018
(5th Cir. 1981), cert. denied, 102 S.Ct. 2965 (1982):
United States v. Diaz, 662 F.2d 713 (11th Cir. 1981);
United States ». Bastone, 526 F.2d 971, 988 (7th Cir.
1975), cert. denied, 425 U.S. 973 (1976). That Callas was
acquitted of involvement in the conspiracy does not re-
troactively undermine the court’s determination that his
statements were admissible under 801(d)(2)(E).6 The
standard for determining guilt, proof beyond a reasona-
ble doubt, is not the standard for determining admissi-
bility under the coconspirator exception. United States
v. Gil, 604 F.2d 546 (7th Cir. 1979).

Unlike the determination of whether a conspiracy
existed between the Xhekas and Callas, and whether
Callas’s statement was made in the course of the con-
spiracy, the issue of whether Callas’s statement was in
furtherance of the conspiracy must of necessity take into
account the contents of the statement.® It is clear to us
that the purpose of Callas’s statements was to keep How-
ard in the conspiracy, and thereby facilitate the Xhekas’
attempt to obtain the insurance proceeds. Although the

5 The acquittal of Callas despite the introduction of the tape,
which was more probative of Callas’s guilt than of the Xhekas’,
indicates that defendants suffered little harm from this
evidence even if improperly admitted.

6 As Howard was acting on behalf of the Government there is
= Oe his statements cannot be admitted under Rule

App. 22

conversation revealed that Callas was not in communi-
cation with the Xhekas in 1979, and did not even know
if the insurance claim had been paid, it also demon-
strated that he was aware of the need for Howard’s'co-
operation and sought to that end to put Howard in touch
with the Xhekas. This suffices to make the conversation
in furtherance of the conspiracy. The tape was properly
admitted.’

V

During the trial the Government called Shaban Islami
as a witness. The court allowed the Government to
impeach Islami through the introduction, as substantive
evidence, of his previous grand jury testimony. Islami
was further impeached by the testimony of a Govern-
ment agent who related a previous inconsistent state-
ment by Islami. Defendants now challenge the admis-
sion of this evidence. This claim is without merit. The
trial court found that there were important discrepan-
cies between Islami’s trial testimony and his previous
statements, and we agree. The Federal Rules of Evi-
dence allow a party to impeach its own witness, and
permit that it be done through the introduction of
extrinsic evidence. Fed. R. Evid. 607, 613; United States
v. Inendino, 604 F.2d 458 (7th Cir. 1979), cert. denied,

Defendants also contend that the tape was of such poor
quality that its relevance was outweigh by the possible prej-
udice. The record reveals that the tape, although originally of
poor quality, was enhanced to the point that it was intelligible
when played to the jury.

As a final argument defendants claim that admission of the
tape violated their Sixth Amendment right to confront
witnesses against them. We have rejected the claim that admis-
sion of an out-of-court statement under Rule 801(d\2XE)
violates the confrontation clause previously and we decline to
reconsider this view. United States v. Regilio, 669 F.2d 1169
1176 (7th Cir. 1981), cert. denied, 102 S.Ct. 2959 (1982); Un
States v. Papia, 560 F.2d 827, 836 n. 3 (7th Cir. 1977); of. Dut-
ton v. Evans, 400 U.S. 74 (1970).

App. 23

444 U.S. 932. Islami’s grand jury testimony was prop-
erly admitted as substantive evidence. Fed. R. Evid.
801(d\1)(A); see also United States v. Brighton Building
& Maintenance Co., 598 F.2d 1101, 1108 (7th Cir. 1979),
cert. denied, 444 U.S. 840.

VI

Defendants tendered several jury instructions that
were rejected by the court. They now allege that the
court’s failure to give defendants’ instructions regarding
the credibility of Howard’s testimony and the proof
needed to convict Beha Xheka of conspiracy was revers-
ible error. We do not agree. The instructions are to be
viewed as a whole, and the exact wording of an instruc-
tion is left to the discretion of the trial court. United
States v. Kirby, 587 F.2d 876, 883 (7th Cir. 1978); United
States v. Garcia, 562 F.2d 411, 416 (7th Cir. 1977). The
court need not give a proposed instruction if the essen-
tial points are covered by those that are given.

Defendants complain that the court’s instruction on
the weight to be given to Howard’s testimony was inade-
quate. The court instructed the jury that Howard was
an accomplice, had received benefits from the Govern-
ment for his role in the investigation and had plead
guilty to a criminal charge related to the fire. The
instruction concluded: “You may give his testimony such
weight as you feel it deserves, keeping in mind that it
must be considered with caution and great care.” While
defendants’ proposed instructions may have placed more
stress upon the caution with which Howard's testimony
was to be viewed, the court’s instruction was more than
adequate. See United States v. Kirby, 587 F.2d at 884.
The court also rejected defendants’ proposed perjurer
instruction. As there was no proof that Howard was a
perjurer in the legal sense of that term, the court prop-
erly rejected this instruction.

Defendant Beha Xheka tendered an instruction that
read: “Mere association with conspirators is not suffi-
cient evidence of guilt of conspiracy.” The court rejected
this, but did instruct the jury as follows:

App. 24

In order to establish the offense of conspiracy, the
government must prove these elements beyond a
reasonable doubt.

= oe s =

3. That the defendant knowingly and intention-
ally became a member of the conspiracy.

* «+ * *®

In determining whether the defendant be-
came a member of the conspiracy you may con-
sider only the acts and statements of that
particular defendant.

* * * =

The government must prove beyond a reason-
able doubt, from the defendant’s own acts and
statements, that he was aware of the common
purpose and was a willing participant.

These instructions were sufficient to apprise the jurors
that they must judge each defendant separately and
base their decision solely upon his own acts or state-
ments, and that the evidence must prove that the defend-
ant was a participant and not just an observer.

VII

Both defendants vigorously argue that there was in-
sufficient evidence to support their convictions. In -_
port of this argument defendants focus upon the credi-
bility, or lack thereof, of Howard. It is the role of the
jury, and not of this court, to pass upon the credibility
of a witness. Howard was not incredible as a matter of
law, and “judgment of acquittal . .. is not required
because the government’s case includes testimony by ‘an
array of scoundrels, liars and brigands.’” United States
v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981) (quoting
United States v. Tiche, 424 F. Supp. 996, 1000-01 (W.D.
Pa. 1977), affd mem., 564 F.2d 90 (3rd Cir.)). In assess-
ing defendants’ claim, then, we must accept the evi-

App. 25

dence in the light most favorable to the Government.
Glasser v. United States, 315 U.S. at 80.

The claim that the evidence was insufficient to sup-
port the conviction of Sadik Xheka is frivolous. There
was ample proof of his involvement in the crime, much
of which was provided by sources other than Howard. We
see no reason for extending this opinion with a review of
the Government's case against Sadik.

The case against Beha Xheka is of a different nature.
First, Beha argues that his acquittal of the substantive
count requires that we view his conspiracy conviction
with suspicion. Second, he argues that the jury improp-
erly convicted him of doing nothing to prevent the fire
rather than of being a member of the conspiracy. Beha
relies upon United States v. Caro, 569 F.2d 411, 418 (5th
Cir. 1978), for his contention that acquittal of the sub-
stantive crime with conviction of conspiracy “should
engage our judicial skepticism. [And that a] critical
analysis of the facts is required when such a contrariety
of results does appear.” He fails to quote the preceding
sentence, in which the court states, “There is nothing
necessarily inconsistent, in law or logic, with such a
result and we do not hold that a conviction for conspir-
acy and acquittal of the substantive offense may never
properly arise from the same facts and trial.” Thus
armed with some “judicial skepticism,” but fully aware
that the jury was not foreclosed from returning this ver-
dict, we examine Beha’s second claim.

Before reviewing the evidence against Beha we will
set forth the basic principles that guide our decision.
Participation in a criminal conspiracy may be shown
through circumstantial evidence. Glasser v. United
States, 315 U.S. at 80; United States v. Hawes, 529 F.2d
472, 482 (5th Cir. 1976). Circumstantial evidence may
include whether the defendant has a stake in the out-
come of the conspiracy. /d.; cf. Bailey v. United States,
416 F.2d 1110, 1115 n. 34 (D.C. Cir. 1969). Once a con-
spiracy is shown to exist evidence that establishes a par-
ticular defendant’s participation beyond a reasonable
doubt, although the connection between defendant and.

App. 26

conspiracy is slight, is sufficient to convict. United
States v. Melcher-Lopez, 627 F.2d 886 (9th Cir. 1980).
Most important to this case is the well-established rule
that mere association, knowledge or approval of a con-
spiracy is not sufficient to prove a defendant’s guilt. /d.;
United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir.
1979), cert. denied, 444 U.S. 994; United States v. Baker,
499 F.2d 845 (7th Cir. 1974), cert. denied, 419 U.S. 1071;
Bailey v. United States, 416 F.2d 1110 (D.C. Cir. 1969).
However, while “mere presence at the scene of the
crime or mere association with conspirators will not
themselves support a conspiracy conviction . . . presence
or a single act will suffice if the circumstances permit
the inference that the presence or act was intended to
advance the ends of the conspiracy.” United States v.
Mancillas, 580 F.2d 1301, 1308 (7th Cir. 1978), cert.
denied, 439 U.S. 958; see also United States v. Dalzotto,
603 F.2d at 645.

The case against Beha consisted of testimony that
Beha had listened and observed the negotiations be-
tween Sonny and Howard, had joined the two men dur-
ing a meeting in the office, had witnessed the delivery
of the gasoline and had been present when Howard pre-
pared the fire. Beha also stood to gain from the suit
filed to collect the insurance proceeds, but he did not
— the insurance company of the true cause of the
ire.

Beha argues that proof that he was aware of the con-
spiracy, and may even have approved of what was hap-
pening, does not amount to proof that he was a con-
spirator. While in many situations mere presence, know]-
edge, and approval would be insufficient we are not
persuaded that that is true here. Beha was not an unin-
terested bystander, silently cheering the conspirators
on. He was part owner of the business that was to be
destroyed and the money that was paid to Howard was
partly his. This is a far cry from the typical “mere pres-
ence” case in which the alleged conspirator has no
demonstrated stake in the conspiracy and contributes

App. 27

nothing to its success. See, e.g. United States v. Caro,
569 F.2d 411 (5th Cir. 1978) (evidence that defendant
owned automobile used during drug sale, that a man
matching defendant’s description spoke with conspira-
tors, and that defendant fled when confronted by Gov-
ernment agents insufficient to support conviction); United
States v. Baker, 499 F.2d 845 (7th Cir. 1974) (proof that
defendant lived with conspirator and provided transpor-
tation to hotel in which drug sale took place held insuf-
ficient); Bailey v. United States, 416 F.2d 1110 (D.C.
Cir. 1969) (proof that defendant was seen speaking with
robber before crime and fled after crime insufficient to
establish crime of aiding and abetting). In this situation
it may well be enough that defendant intentionally
joined Sonny and Howard in the office for one of the
meetings, although he was careful to say nothing in
Howard’s presence. We need not, however, rest our deci-
sion upon this point.

As we have discussed elsewhere, the goal of this con-
spiracy was not the destruction of the Bull-n-Bear, but
rather was collection of the insurance proceeds. To
accomplish this goal the conspirators needed to conceal
their crime. Beha, who was fully aware of the true
cause of the fire, did not complain to Sonny when he
learned of the plan and did not alert the relevant
authorities to prevent the fire. More importantly, Beha
joined in the suit against the insurance company, doing
nothing to reveal the cause of the fire. As the Second
Circuit observed in a similar case, “Where the goal of
the conspiracy can be reached only through deception
and concealment, silence which is designed to conceal
may indicate an intention to conspire.” United States .
Eucker, 5382 F.2d 249, 254 (2nd Cir. 1976), cert. denied,
429 U.S. 1044 (member of brokerage firm who failed to
disclose fraud to SEC guilty of conspiracy). Beha was
not an innocent by-stander in this situation and could
properly be found guilty of conspiracy.

App. 28

Conclusion

The trial of the case, and resolution of the issues
raised on appeal, required a great deal of time and
effort. As is often true in complex conspiracy cases the
trial was not perfect, but it was fair. That is all to
which the defendants are entitled. Accordingly, the judg-
ments of convictions of the defendants are AFFIRMED.

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

App. 29

Constitutional Provisions and Statutes Involved

(i) Whoever maliciously damages or destroys, or at-
tempts to damage or destroy, by means of an explosive,
any building, vehicle, or other real or personal property
used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce shall be impris-
oned for not more than ten years or fined not more than
10,000, or both: and if personal injury results shall be
imprisoned for not more than twenty years or fined not
more than $20,000, or both; and if death results shall also
he subject to imprisonment for any term of years, or to
the death penalty or to life imprisonment as provided in
section 34 of this title.

(j) For the purposes of subsections (d), (e), (f). (g).
(h), and (i) of this section, the term ‘‘explosive’’ means
gunpowders, powders used for blasting, all forms of high
explosives, blasting materials, fuzes (other than electric
circuit breakers), detonators, and other detonating agents,
smokeless powders, other explosive or incendiary devices
within the meaning of paragraph (5) of section 232 of
this title, and any chemical compounds, mechanical mix-
ture, or device that contains any oxidizing and combustible
units, or other ingredients, in such proportions, quantities,
or packing that ignition by fire, by friction, by concussion,
by percussion, or by detonation of the compound, mixture,
or device or any part thereof may cause an explosion.

Added Pub.L. 91-452, Title XI, § 1102(a), Oct. 15, 1970,
84 Stat. 956.

Historical and Revision Notes
Reviser’s Note. Based on Title 18, U.S.C. 1940 ed.,
$§ 464, 465 (Mar. 4, 1909, ¢. 321, $3 285, 286, 35 Stat. 1144
| Derived from R.S. $§ 5385-5387; Jan. 15, 1897, «. 29, § 2,
29 Stat. 487] ).

App. 30

Sections were consolidated and rewritten both as to
form and substance and that part of each section relating
to destruction of property by means other than burning
constitutes section 1363 of this title.

The words ‘within the maritime and territorial juris-
diction of the United States’* were added to preserve ex-
isting limitations of territorial applicability. (See section
7 of this title and note thereunder.)

The phrase ‘‘any building, structure, or vessel, any ma-
chinery or building materials and supplies, military or
naval stores, munitions of war or any structural aids or
appliances for navigation or shipping’’ was substituted
for ‘‘any dwelling house, or any store, barn, stable, or
other building, parcel of a dwelling house’’, in section 464
of Title 18, U.S.C., 1940 ed., and ‘‘any arsenal, armory,
magazine, rope walk, ship house, warehouse, blockhouse,
or barrack, or any storehouse, barn or stable, not parcel
of a dwelling house, or any other building not mentioned
in the section last preceding, or any vessel, built, building,
or undergoing repair, or any lighthouse, or beacon, or any
machinery, timber, cables rigging, or other materials or
appliances for building, repairing or fitting out vessels,
or any pile of wood, boards, or other lumber, or any mili-
tary, naval or victualing stores, arms, or other munitions
of war’’, in section 465 of Title 18, U.S.C., 1940 ed. The
substituted phrase is a concise and comprehensive descrip-
tion of the things enumerated in both sections.

The punishment provisions are new and are graduated
with some regard to the gravity of the offense. It was felt
that a possible punishment of 20 years for burning a woud
pile or injuring or destroying an outbuilding was dispro-
portionate and not in harmony with recent legislation.
80th Congress House Report No. 304.

App. 31

$ 1153. Offenses committed within Indian country

Any Indian who commits against the person or prop-
erty of another Indian or other person any of the follow-
ing offenses, namely, murder, manslaughter, rape, incest,
assault with intent to kill, assault with a dangerous weap-
on, arson, burglary, robbery, and larceny within the Indian
country, shall be subject to the same laws and penalties
as all other persons committing any of the above offenses,
within the exclusive jurisdiction of the United States.

As used in this section, the offense of rape shall be de-
fined in accordance with the laws of the State in which the
offense was committed, and any Indian who commits the
offense of rape upon any female Indian within the Indian
country, shall be imprisoned at the discretion of the court.

As used in this section, the offense of burglary shall be
defined and punished in accordance with the laws of the
State in which such offense was committed. June 25, 1948,
c. 645, 62 Stat. 758; May 24, 1949, c. 139, § 26, 63 Stat. 94

$ 1952. Interstate and foreign travel or transportation
in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce
or uses any facility in interstate or foreign commerce, in-
cluding the mail, with intent to—

(1) distribute the proceeds of any unlawful activity;
or

(2) commit any crime of violence to further any
unlawful activity; or

(3) otherwise promote, manage, establish, carry on,
or facilitate the promotion, management, establish-
ment, or carrying on, of any unlawful activity,

App. 32

and thereafter performs or attempts to perform any of
the acts specified in subparagraphs (1), (2), and (3), shall
be fined not more than $10,000 or imprisoned for not mor
than five years, or both.

(b) As used in this section ‘unlawful activity’’ means
(1) any business enterprise involving gambling, liquor on
which the Federal excise tax has not been paid, narcotics,
or prostitution offenses in violation of the laws of the
State in which they are committed or of the United States,
or (2) extortion, bribery, or arson in violation of the laws
of the State in which committed or of the United States.

(c) Investigations of violations under this section in-
volving liquor or narcotics shall be conducted under the
supervision of the Secretary of the Treasury.

Added Pub.L., 87-228, § 1(a), Sept. 13, 1961, 75 Stat. 49%,
and amended Pub.L. 89-68, July 7, 1965, 79 Stat. 212.

$ 232. Definitions

(5) The term ‘‘explosive or incendiary device’’ means
(A) dynamite and all other forms of high explosives, (B)
any explosive bomb, grenade, missile, or similar device,
and (C) any incendiary bomb or grenade, fire bomb, or
similar device, including any device which (i) consists of
or includes a breakable container including a flammable
liquid or compound, and a wick composed of any material
which, when ignited, is capable of igniting such flammable
liquid or compound, and (ii) can be carried or thrown by
one individual acting alone.

App. 33
CHAPTER 153. HABEAS CORPUS

2255. Federal custody; remedies on motion attacking
sentence

vs

A prisoner in custody under sentence of a court estab-
lished by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum author-
ized by law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclu-
sions of law with respect thereto. If the court finds that
the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or other-
wise open to collateral attack, or that there has been such
a denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral
attack, the court shall vacate and set the judgment aside
and shall discharge the prisoner or resentence him or grant
au new trial or correct the sentence as may appear ap-
propriate.

A court may entertain and determine such motion with-
out requiring the production of the prisoner at the hearing.

The sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf
of the same prisoner.

App. 34

An appeal may be taken to the court of appeals rrom the
order entered on the motion as from a final judgment on
application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to a: ply for relief by motion
pursuant to this section, shall not be entertained if it ap-
pears that the applicant has failed to apply for relief,
by motion, to the court which sentenced him, or that such
court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the
legality of his detention.

June 25, 1948, c. 646, 62 Stat. 967; May 24, 1949, ¢. 139,
$ 114, 63 Stat. 105.

App. 35
CONSTITUTION
AMENDMENT V

CAPITAL CRIMES; DOUBLE JEOPARDY; SELF-
INCRIMINATION; DUE PROCESS; JUST COMPEN.
SATION FOR PROPERTY

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life,
liberty or property without due process of law; nor shall
private property be taken for public use, without just
compensation.

AMENDMENT VI

JURY TRIAL FOR CRIMES, AND
PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously as-
certained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for ob-
taining witnesses in his favor, and to have the Assistance
of Counsel for his defence.

App. 36

Rule 801. Definitions.

(d) Statements which are not hearsay. — A statement
is not hearsay if—

(2) Admission by party-opponent.— The statement is
offered against a party and is... (E) a statement by a
coconspirator of a party during the course and in fur-
therance of the conspiracy.

Rule 104. Preliminary Questions.

(a) Questions of admissibility generally, — Preliminary
questions concerning the qualification of a person to be
a Witness, the existence of a privilege, or the admissibility
of evidence shall be determined by the court, subject to
the provisions of subdivision (b). In making its deter-
mination it is not bound by the rules of evidence except
those with respect to privileges.

Rule 408. Exelusion of Relevant Evidence on Grounds
of Prejudice, Confusion, or Waste of Time.

Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0338%3A1. Public record. Not legal advice.