Petition — Mastrangelo v. United States

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83-1365

No.:

IN THE

Supreme Court of the United States

October Term, 1983

RICHARD MASTRANGELO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GERALD L. SHARGEL

Attorney for Petitioner

150 East 58th Street

New York, New York 10155

(212) 486-1717

Questions Presented

1. Whether a finding that a criminal defendant has

waived his Sixth Amendment right to confrontation can

be based merely upon a showing of bare knowledge of a

plot to make a witness unavailable coupled with a

failure to warn appropriate authorities?

2. Whether this Court should resolve a split among

the Circuit Courts of Appeals over whether the appro-

priate burden of proof for the government in establish-

ing that a defendant has waived his confrontation

rights should be preponderance of the evidence or clear

and convincing evidence?

List of Parties

The trial and conviction from which petitioner now

appeals involved no other parties. However, at an earlier

trial in this case, which ended in a mistrial, petitioner

was tried with co-defendant Joseph Dazzo.

so 7 1 pre K

r r

;

Table of Contents

Questions Presented!!!

The Initial Appeal of Petitioner’s Conviction

The Post-Remand Hearing .................

The District Court’s Decision Upon Remand

The Post Hearing Appeal ..................

Reasons for Granting the Writ .................

I - A Finding Of Waiver Cannot Be Based

Merely Upon A Showing Of Bare Knowledge

Coupled With A Failure To Warn Appropriate

C % ͤↄÄ᷑ꝛʃ?ꝛ e 12

II- There Exists A Conflict Among The Cir-

cuits On The Burden Of Proof By Which A

Defendant Is Deemed To Have Waived His

Confrontation Right. 16

III A “Clear and Convincing” Evidentiary

Standard Should Be Employed When Deter

mining Whether A Defendant Has Waived

His Confrontation Rights .................. 17

a K & WON NH NY — — =

— — —

wo d —

Mastrangelo Had Prior Knowledge Of

The Murder, It Is Difficult To Identify

A Rational Basis For This Conclusion 21

97/22 OP I oe ͤ ͤ „ Üh̃ꝗ ee ð ( te ee ee ee e

3. Berardi’s Testimony Was Not

. ² AA A

a. Berardi had a strong motive to

give false testimony................

b. Berardi’s testimony at the hearing

WD ỹ,j /

Appendix A - Opinion of United States Court of

Appeals Decided November 4, 1988383.

Appendix B Order of United States Court of

Appeals on Petition for Rehearing and Suggestion

e ⅛ ũÜ cubauvcbeeees 60s se

Appendix C - Opinion of United States District

Court Dated April 15, 1983 .....................

Appendix D- Opinion of United States Court of

Appeals Decided November 15, 1982............

Appendix E - Opinion of United States District

Court Dated February 24, 1982 .................

Appendix F- Opinion of United States Court of

Appeals Decided October 28, 1981 ..............

Table of Authorities

Cases:

Barber v. Page,

1 co co conus dhcp ectesasweet 13

Black v. Woods,

651 F.2d 528 (8th Cir.), cert. denied, 454 U.S.

ccc dix wha suave Robatooes 13

Brookhart v. Janis,

| SRE FPS ee en 13, 30

Farwell v. Keaton,

51 Mich. App. 585 (1974), rev d on other grounds,

396 Mich. 281, 290 N.W.2d 217 (1976) ......... 15

Holtzman v. Hellenbrand,

92 A.D.2d 405, 460 N. V. S. 2d 591 (2d Dept. 1983) 17

Johnson v. Zerbst,

r 13

Lancey v. United States,

356 F.2d 407 (9th Cir.), cert. denied, 385 U.S.

/ / obs nin kerelens aietih 14

Lego v. Twomey, 2

, ̃ ¶ . ̃ Gow hin 18

Neal v. United States,

102 F. 2d 643 (8th Cir. 1999) ꝶ.:9 9999. 14

Ohio v. Roberts, :

r cnctpasbyse 17

Steele v. Taylor,

684 F.2d 1193, cert. denied sub nom. Kilbane v. 3

Marshall. U.S. , 103 S. Ct. 1501 7

r AA Cea sat ec cmee 13, 14, 16, 17

United States v. Balano,

618 F.2d 624 (10th Cir. 1979), cert. denied,

h 13, 17

United States v. Carlson,

547 F.2d 1346 (8th Cir. 1976), cert. denied,

431 U.S. 914, 97 S. Ct. sine a aang ts si 13

United States v. Davila,

698 F. 2d 715 (5th Cir. 1983) 14

United States v. Hodges,

566 F. 2d 674 (9th Cir. 1977 )) 14

United States v. Thevis,

665 F.2d 616 (5th Cir.), cert. denied sub nom.

Evans v. United States, 456 U.S. 1008

yh ͤ K 13, 16, 17, 18

Yania v. Bigan,

397 Pa. 316, 155 A.2d 343 (1959) .............. 15

Yu v. New York, New Haven and Hartford Rail-

road Company, 145 Conn. 451, 144 A.2d 56

— ᷣ — a cae aa vavccics 15

United States Constitution:

r i, 3, 4, 13, 30

Statutes:

GN on She ne. vee eoauesideeetnee es 14

D void aubwntaskeastepiee 3 3

, ß... 3

r wa. re enb than ne pwdeess 3

D Sores dav ecebucebacs cuca « 3

D SSA can ca Wunvebvdccceretasuous 3

r 2

Other Authorities:

Fed. R Evid. 0 0⁹)))/)/ cece ccecs 4. 13

Prosser, Torts (4th Ed.), 6 56. 15

Restatement, Second, Torts § 315. 15

Supreme Court Rule 21.4 ]]“) 4

IN THE

Supreme Court of the United States

October Term, 1983

RICHARD MASTRANGELO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Richard Mastrangelo, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Second Cir-

cuit affirming the judgment of conviction entored

against petitioner by the United States District Court

fc. the Eastern District of New York (McLaughlin, J.).

OPINIONS BELOW

The opinions of the Court of Appeals appear in the

appendix hereto at pp. 1a-4a, 26a-34a, 41a-60a. The

of the trial court appear in the appendix at

JURISDICTION

The date of the judgment of the United States Court

of Appeals for the Second Circuit was November 4, 1983.

A Timely Petition for Rehearing was denied on December

19, 1983. The court’s jurisdiction is invoked under Title

28, United States Code, §1254(1)

CONSTITUTIONAL PROVISION INVOLVED

IN THE CASE

Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall

enjoy the right...to be confronted with the wit-

nesses against him.

STATEMENT OF THE CASE

This case raises an issue of fundamental im-

portance to the vitality of the Sixth Amendment. For

although the evidence unequivocally established that

petitioner Richard Mastrangelo had absolutely no

involvement in the murder of a government witness, the

Second Circuit held that he had waived his right to

complain of the admission of the murdered witness’

grand jury testimony. The court held that a finding of a

waiver need only be supported by a showing that a de-

fendant had “bare knowledge” of a plot to kill a govern-

ment witness and then failed to warn the appropriate

authorities. Moreover, the court held that this showing

of bare knowledge need only be supported by a prepon-

derance of the evidence. In so holding, the court ex-

Procedural History

In April of 1981, petitioner and a co-defendant were

tried on charges of conspiracy to import and to possess

with intent to distribute marijuana (21 U.S.C. §846(1));

possession with intent to distribute marijuana and

methaqualone (21 U.S.C. §841(a)(1)); and importation

of marijuana and methaqualone (21 U.S.C. §§952(a) and

960). These proceedings resulted in a mistrial as to

Mastrangelo, declared over defense objection, after the

murder of James Bennett, the government’s only wit-

ness against him. The Second Circuit affirmed the trial

court’s finding of manifest necessity and ordered that

Mastrangelo be retried.

In March of 1982, a jury convicted Mastrangelo of

the above charges and, in addition, the charge of ob-

structing justice 18 U.S.C. §1503 (1976). The grand

jury testimony of the murdered witness was introduced

at this trial over defense counsel’s objection. As a result

of this conviction, Mastrangelo was sentenced to a total

of nine years in prison, followed by a special parole

term of ten years, and $20,000 in fines.

On appeal, the Second Circuit remanded for eviden-

tiary hearings on the issue of whether Mastrangelo

effectively waived his Sixth Amendment confrontation

right and hearsay objection through involvement in the

myrder of Bennett. The Court of Appeals directed that

evidence of Mastrangelo’s complicity in the murder

should be determined under the “preponderance of the

evidence” standard of proof. However, evincing an un-

certainty about which standard of proof should apply,

the court also directed the trial court to make findings

under the clear and convincing evidence standard. The

court further stated that “bare knowledge of a plot to kill

Bennett and a failure to give warning to

authorities is sufficient to constitute a waiver.” (34a)

On remand, the trial court found that Mastrangelo

had not been in any way involved in the murder but did

have “bare knowledge” that it would occur. It also held

that this latter conclusion was supported only by a pre-

ponderance of the evidence and not by clear and con-

vincing evidence. The Second Circuit affirmed the trial

court’s finding and upheld petitioner’s conviction.

The Evidence at Trial

The peculiar procedural posture of this case obviates

the needs for a discussion of what occurred at trial. That

is, since the issues raised in this petition relate only to

whether petitioner waived his right to confrontation

through knowledge of the plan to kill James Bennett,

the evidence at trial, with the exception of the fact that

James. Bennett’s grand jury testimony was admitted

into evidence, is irrelevant. Accordingly, due to the page

limitations imposed by Supreme Court Rule 21.4, it will

not be discussed. Should the Court require more in-

formation about the facts of this case, they are amply

set out in the opinions contained in the appendix to this

petition.

The Initial Appeal of Petitioner’s Conviction

On appeal of his conviction, petitioner argued that

Bennett’s grand jury testimony was inadmissible under

both Fed.R.Evid. 804(b)(5) and the Sixth Amendment’s

Confrontation Clause. The Second Circuit, hoping “to

avoid resolution of theſse] difficult...issues”, (31a),

remanded for an evidentiary hearing to determine if

Mastrangelo had been involved in Bennett’s murder and

had thereby waived his right of confrontation. As noted,

the Court of Appeals directed that evidence of Mas-

trangelo’s complicity in the murder should be deter-

mined under the “preponderance of the evidence” stand-

ard of proof, with an additional finding to be made

under the clear and convincing evidence standard. The

court further instructed:

If the District Court finds that Mastrangelo was

in fact involved in the death of Bennett through

knowledge, complicity, planning or in any other

way, it must hold his objections to the use of

Bennett’s testimony waived. Bare knowledge of a

plot to kill Bennett and a failure to give

to appropriate authorities is sufficient to |

The Post-Remand Hearing

The government’s first witness at the hearing was

Joseph Bennett, a participant in the federal witness

protection program (H 21),? who has a long criminal

history.“ Bennett, who was the nephew of the murdered

witness, James Bennett (H 36), testified that he had met

Mastrangelo in late 1975. (H 32) Since then, they had

engaged in some 12 to 15 drug transactions. (H 41)

In January, 1978, Mastrangelo supposedly asked

Bennett if he would be interested in unloading a large

marijuana shipment, for which he could earn about

$10,000. (H 42-43) Bennett refused because “I had

jumped bail again and I really didn’t want to get in-

volved in it.” (H 43) Some months later, though, Mas-

trangelo made the same offer. (H 44) Bennett again

refused for the same reasons. (H 44) Finally, in Novem-

ber, 1978, the offer was made and refused for a third

time. (H 45)

Shortly after that last conversation, Bennett

learned that there had been a large seizure of marijuana

? The letter “H” refers to the transcript of the post-remand hearing.

According to Bennett, his first felony conviction, in 1972 or 1973,

Subsequently,

in November, 1979, he pleaded guilty to a 1977 Ulster County, New

York, charge of assault and robbery. For this crime, he received a

sentence of eight and a half to 17 years imprisonment. (H 24)Present-

ly, Bennett is also serving three concurrent one and a half to three

st four eee

in the Jamaica Bay area of Queens.‘ (H 46) Based on

this information, he concluded it hat Richie lost a lot

of grass. (H 46) Thereafter, Mastrangelo called and

asked Bennett if he had heard what happened“. (H 46)

The two men agreed to meet at a bar in Newburgh, New

York, where Mastrangelo “told me that I should proba-

bly stay away from the area. It would be real hot.”

(H 47)

It was not until a few months later that Bennett saw

Mastrangelo again. Responding to a telephone call from

him (H 47), Bennett met Mastrangelo at the “Canarsie

Bar” in Brooklyn. (H 48) At this meeting, Mastrangelo

reportedly asked Bennett “if it was possible for me to

speak to my uncle Jimmy, to try to prevent him from

testifying and hurting Richie with any testimony he

might give to a Grand Jury.” (H 49) Bennett refused this

request because his uncle was a “legitimate guy”, sug-

gesting that Mastrangelo instead offer James Bennett a

$100,000 bribe. (H 49-50) In response, Mastrangelo

supposedly said “that I [Joseph Bennett] shouldn’t be

concerned about it. That he’d make sure that he [James

Bennett] never testified against him.” (H 50)°

The second and final government witness was

Nicholas Berardi, also a participant in the witness pro-

tection program (H 21) with a long criminal history.“ His

involvement with Mastrangelo began in August, 1981,

while they were both imprisoned at the Metropolitan

Correctional Center in New York. (H 214) The two men

apparently became friends and, although Mastrangelo

was “pretty closed-mouthed”, talked on a regular basis.

(H 215)

The crucial part of Berardi’s testimony related to a

conversation he supposedly had with Mastrangelo in

November, 1981. (H 253) Yet, Berardi’s testimony about

this conversation was incredibly obscure, if not al-

together incomprehensible. Apparently, after Mas-

trangelo had lost his appeal of Judge Weinstein’s denial

of his double jeopardy motion, Berardi “mentioned

something, you know, his friends, just, I don’t talk, that

his friends are doing no favor by whacking out this guy

on the day of his trial.” (H 223) According to Berardi’s

first account of this conversation, Mastrangelo sup-

posedly answered that “he [Mastrangelo] had no

choice, no alternative and it had to be done, a phone

call was made and it had to be done.” (H 223) However,

almost immediately, Berardi began to waffle as to

Mastrangelo’s use of pronouns. That is, he was unsure

whether it was “he”, “we” or “they” who had “no

choice”. (H 223, 290, 293)

On cross-examination, the substance of Berardi's

testimony became even more unclear, for he admitted

that, in a February 26, 1982, interview with Assistant

United States Attorney Walter Mack, he had told Mack,

in substance, that Mastrangelo did not know about the

murder prior to its occurrence. (H 431) Further, Berardi

admitted that the “we got the phone call” statement had

initially been made to Mastrangelo in response to

Mastrangelo’s complaints about the timing of the mur-

der. (H 432)

Following this last revelation, Berardi became even

The rest of Berardi’s testimony, elicited by both

counsel and the court, did little to help matters. While

Berardi finally and unequivocally stated that (1) the

telephone call at issue was made to find our where the

murdered witness Bennett could be found (H 439);

(2) Mastrangelo was not a party to that telephone call

(H 440); and (3) he did not believe that Mastrangelo

knew who actually shot Bennett (H 442-44), he never

gave an unequivocal answer to the crucial questions of

what Mastrangelo knew and when he knew it.

Berardi did state twice that, in his opinion, Mas-

trangelo knew, prior to the incident, that Bennett was

going to be murdered. (H 444) But he adamantly refused

to articulate the grounds for this belief. On recross-

examination, the witness instead stated that his testi-

mony about Mastrangelo’s knowledge of the murder

was a mere “feeling”, based upon “common sense.”

(H 445) Indeed, Berardi stated that Mastrangelo never

confessed that he was a participant or had knowledge in

the murder of James Bennett. (H 445-46)

Thus, as the District Court’s questioning of Berardi

makes clear, the witness’ testimony did little to resolve

the issues to be decided at the hearing.

The Court: The critical questions, did he know

that it would happen? and you've said “yes” to

that several times. But in answer to Mr. Shargel,

you said yes, in my opinion, I imagine it, I specu-

late it, as common sense. In answer to Mr. Mul-

ler’s question you said it’s based on what Mr.

Mastrangelo told me.

The Witness: Many conversations.

The Court: That's the area that’s gray and it’s got

to be cleared up if this issue is to be settled.

What is in Mr. Mastrangelo’s conversation

with you that leads you to believe he knew the

witness would be killed?

oye fey

—

The Witness: He knew that it was -I would put

it he knew that the guy was going to get whacked

out.

The Court: How did he know it? How do you know

The Witness: Talk - I am giving - that’s the only

thing I could do, give you my feeling based on

conversations with him.

The Court: You say “based on conversations.”

You must tell me, if you can, what -

The Witness: A period of four months, your Honor,

with this guy, 17 hours a day.’

The Court: What did he say to you? What did he

say to you that would support your

The Witness: I am sticking to my statement of

November.

The Court: I’m sorry?

The Witness: I’m sticking to my statement of what

he told me in November. Phone call was made and

the guy had to get whacked out.

The Court: Is that the sole source of your con-

clusion?

The Witness: Yes, yes. I have to stick with that.

(H 447-48)

Following Berardi, Walter Mack, an Assistant

United States Attorney in the Souther District of New

York, was called as a defense witness. The purpose of

Mack’s testimony was to clarify the significance of a

draft account of Berardi’s February 26, 1982, interview

with Mack. (Defense Exhibit C) That report stated, in

relevant part:

7 Clearly, Berardi’s general conversations with

a pated of WET (vv

Mastrangelo’s involvement in the murder. es own admis-

sion, Mastrangelo was “closed-mouthed” (H 215) and the November

conversation was the only one in which the murder was discussed.

(H 448)

$i =

* N

1 . —

From conversations with Mastrangelo, source

[Berardi] believes that Frankie (LNU), Mastran-

gelo’s partner, and Tony Stabile were responsible

[for Bennett’s murder]: Mastrangelo did not

know the murder was going to occur, or who

actually did it; however it is clear that he was the

beneficiary. Bennett was apparently on a family

visit to his sister’s house. He had refused pro-

tection. Somebody made a call, probably his

brother-in-law. Mastrangelo was told, in response

to his complaints about the timing of the murder,

that “we only got the call that morning” as to his

‘Beane and that we didn’t know where he

was until then!

He could provide no additional information at

this time.

In Mack’s view, the agent’s report of the February

26th interview was somewhat inaccurate. (H 466)

Rather, according to Mack, the gist of Berardi’s informa-

tion was that:

There was one or two perhaps two conversa-

tions in which Richard [Mastrangelo] in a sense

indicated or admitted that the murder had to be

done, that was the only way it could be handled

and that I don’t think that Nicky ever said to me

that Richard admitted who did it, but that the

organization had had it done, that people who

were in the organization of which Richard is a q

party that had the homicide done and that ,

Richard had some knowledge that there was a

telephone call or something had happened in

which this witness’ whereabouts was revealed to

the organization prior to the day he testified.

(H 475) In other words, “the gist of what

[was] that there was an organization of which Richard

was a part that basically had this witness murdered.”

(H 475)

call” conversation with Mastrangelo, he contacted the

agent and related to him the substance of that con-

versation. (H 297, 423, 449) According to the agent,

“catch phrases, buzz words and incomplete sentences”

(H 517), mentioned someone with the last name that

began with Mastro“. (H 518) However, the agent did

not hear the first name or the full last name. (H 518)

Rather, the February 26th meeting was the “first time

the agent recalls hearing the name Richard Mastrange-

lo.” (H 519)

The second part of the stipulation dealt with the

report that the agent prepared about the meeting be-

tween Mack and Berardi. According to the agent, the

part of his report that stated that “Mastrangelo did not

know the murder was going to occur....” meant that

Mastrangelo did not know the details of the murder, and

did not know it would occur precisely when it did.” As

for the more crucial issue, the agent did not “recall

if Berardi believes Mastrangelo had prior knowledge

that the witness would be killed.” (H 519)

The District Court’s Decision Upon Remand

In evaluating this evidence, Judge McLaughlin

made clear that there was no proof at all to suggest that

Mastrangelo had any involvement in the murder of

James Bennett. Rather, the evidence at the hearing was

directed solely towards showing that Mastrangelo knew

in advance that Bennett would be murdered. Thus,

Judge McLaughlin held: “I find that the government

has established by a preponderance of credible evidence

oe . e J * sak Poe Fy Be 8 —

D ore 7

that Mastrangelo had prior knowledge of a plot to mur-

der James Bennett and failed to warn the appropriate

authorities. I find, however, that the government has

not established Mastrangelo’s prior knowledge of the

murder plot by ‘clear and convincing’ evidence.” (7a)

The Post Hearing Appeal

On the appeal after remand, Mastrangelo argued

(1) that a finding of waiver cannot be based upon a

showing of “bare knowledge” coupled with a failure

to warn authorities and (2) that a defendant’s right to

confrontation should be deemed waived only upon proof

by “clear and convincing” evidence of his complicity

in a witness’ unavailability. The Second Circuit, with

virtually no explanation, affirmed the opinion of the

District Court. (2a)

REASONS FOR GRANTING THE WRIT

The court below erroneously permitted the admis-

sion of Bennett’s grand jury testimony even though

petitioner was in no way responsible for the unavail-

ability of this witness. Moreover, the court conditioned

waiver only upon proof by a mere preponderance of the

evidence that Mastrangelo had knowledge of a plot to

kill Bennett. Where the inherent reliability of evidence

is at issue, as in the instant case, the correct waiver

standard should be proof by ‘clear and convincing

evidence.’

A Finding Of Waiver Cannot Be Based Merely

Upon A Showing Of Bare Knowledge Coupled

With A Failure To Warn Appropriate Authorities.

When the Second Circuit held that ſblare knowl-

edge of a plot to kill Bennett and a failure to give warn-

ing to the appropriate authorities is sufficient to consti-

tute a waiver [of Mastrangelo’s confrontation rights

(34a), it drastically expanded the doctrine of waiver

and, erroneously denegrated the significance of the

Sixth Amendment’s Confrontation Clause.“ The right

to confrontation is a fundamental constitutional right

and “for a waiver to be effective it must clearly be

established that there was an intentional relinquish-

ment or abandonment of [it]”” Brookhart v. Janis, 384

U.S. 1, 4 (1966) (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)); accord, Barber v. Page, 390 U.S. 719, 725

(1968). Thus, other courts which have considered the

issue of waiver have insisted upon a showing that a

defendant took affirmative steps to prevent a witness

from testifying. See, e.g., Steele v. Taylor, 684 F.2d 1193,

cert. denied sub nom. Kilbane u. Marshall, U.S. —_,

103 S.Ct. 1501 (1983) (defendants wrongfully convinced

witness not to testify against them); United States v.

Thevis, 665 F.2d 616 (5th Cir.), cert. denied sub nom.

Evans v. United States, 456 U.S. 1008 (1982) (defendant

himself shown to be responsible for the murder of a

government witness); Black v. Woods, 651 F.2d 528 (8th

Cir.), cert. denied, 454 U.S. 847 (1981) (defendant threat-

ened and attempted to intimidate government witness);

United States v. Balano, 618 F.2d 624 (10th Cir. 1979),

cert. denied, 449 U.S. 840 (1980) (defendant had threat-

ened the life or a witness); United States u. Carlson, 547

F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97

S.Ct. 2174, 53 L.Ed.2d 224 (1977) (defendant had threat-

ened witness).

In the present case, however, Mastrangelo was

never shown to have taken part in the murder of Ben-

nett. This was made clear by Judge McLaughlin’s find-

ings in the evidentiary hearing below. Moreover, nearly

four years after Bennett’s murder there has been no

additional evidence beyond these findings, much less an

indictment, suggesting that Mastrangelo was involved

in the killing. Since it has never been shown that Mas-

trangelo was responsible for this witness’ unavail-

* For the purposes of this petition, the issue of waiver will be dis-

cussed in a Sixth Amendment context. However, these same argu-

ments also apply to the finding that Mastrangelo waived his claim

that James Bennett's testimony was, in addition, inadmissible under

Fed.R.Evid. 804(b)(5).

ability it should not be presumed that he has waived

his confron tation right under the Sixth Amendment.

Prior to the Second Circuit’s decision in Mastrange-

lo, the law had been crystal clear that a waiver of one’s

confrontation rights took place only where a witness

was “made unavailable by the wrongfu! conduct” of a

defendant. Steele v. Taylor, supra, 684 F.2d at 1202

(emphasis supplied). Now, though, the court has ex-

panded the scope of the waiver doctrine to encompass

situations where the defendant has not even acted

wrongly under the law. Assuming, as we must, that a

preponderance of the evidence showed that Mastrangelo

had bare knowledge of the plot to kill Bennett, he com-

mitted no crime by failing to report it. Nor did he have

any common law duty to give an appropriate warning.

Thus, in a legal sense, Mastrangelo did not act impro-

perly, for he had no legal obligation to tell anyone about

a plan to murder James Bennett. It would therefore be

improper and unfair to find a “waiver” on his part based

upon his failure to take actions that the law in no way

required him to take.

Surely, Mastrangelo violated no statute by failing

to inform authorities about a plot to kill James Bennett.

The only conceivably applicable crime in this situation

would be misprision of a felony, 18 U.S.C. §4. Yet, the

law is clear that Im Jere silence, without some affirma-

tive act, is insufficient” to sustain a conviction for this

crime, Lancey v. United States, 356 F.2d 407, 410 (9th

Cir.) cert. denied, 385 U.S. 922 (1966). Because “there

is no obligation to notify civil authorities” about the

commission of a crime, United States v. Hodges, 566

F.2d 674, 675 (9th Cir. 1977), the government, in a mis-

prision case, is required to show “that a felony was

committed, that [the defendant} had knowledge of the

vious that no crime was committed. See also Neal v.

United States, 102 F.2d 643 (8th Cir. 1939).

Nor, as noted, can it be said that Mastrangelo had

any other variety of duty, imposed by law, to report

knowledge of the plan to kill Bennett. “In the determina-

tion of the existence of a duty, there runs through much

of the law a distinction between action and inaction...

Hence there arose very early a difference, still deeply

rooted in the law of negligence, between ‘misfeasance’

and ‘nonfeasance’ - that is to say, between acts of mis-

conduct working positive injury to others and passive

inaction or a failure to take steps to protect them from

harm.” Prosser, Torts (4th Ed.), §56 at 338-39.

The significance of the foregoing distinction

is that whereas a cause of action generally arises

in favor of a party injured through another’s

misfeasance, no such action lies to recover for

injuries sustained as a result of nonfeasance. This

is simply a corollary of the principal that every-

one is obligated to so conduct himself so as not to

create an unreasonable risk of harm to others, and

yet no one is obliged to assist one who is injured

by another or himself.

Farwell v. Keaton, 51 Mich.App. 585, 589-90 (1974), rev'd

on other grounds, 396 Mich. 281, 290 N.W.2d 217 (1976);

see, e. g., Yania v. Bigan, 397 Pa. 316, 155 A. 2d 343 (1959)

(no civil liability arising out of a death by drowning

even though the defendant had urged and taunted the

deceased to jump into a body of water and then failed

to go to the deceased’s rescue as he was drowning.) Here,

assuming that Mastrangelo did know of the plan to kill

Bennett, his actions, or lack of them, can only be charac-

terized as “nonfeasance”. He owed no duty to James

Bennett, having no special relationship with him from

which a duty might have arisen. See, e.g., Yu v. New

York, New Haven and Hartford Railroad Company, 145

Conn. 451, 144 A.2d 56 (1958) (a carrier owes a duty of

care to a passenger); Restatement, Second, Torts §315.

Thus, while his failure to act may not have been morally

Ultimately, then, since it is clear that Mastrangelo

had no legal obligation to warn of the plan to kill

Bennett, the Second Circuit’s expansion of the waiver

doctrine is at odds with the principle underlying it. “The

rule [concerning waiver I. is based on a public policy

protecting the integrity of the adversary process by

deterring litigants from acting on strong incentives to

prevent the testimony of an adverse witness.” Steele v.

Taylor, supra, 684 F.2d at 1202 (emphasis supplied). Put

another way, “when confrontation becomes impossible

due to the actions of the very person who would assert

the right, logic dictates that the right has been waived.”

United States v. Thevis, supra, 665 F.2d at 630 (empha-

sis supplied). Yet, here, the evidence showed that

Mastrangelo did absolutely nothing that prevented

Bennett from testifying. Thus, to find a waiver under

these circumstances, would amount to an unprecedented

and ill-advised alteration of the law.

There Exists A Conflict Among The Circuits On

The Burden Of Proof By Which A Defendant Is

Deemed To Have Waived His Confrontation

Right.

While the Second Circuit panel that remanded the

case recognized that “the clear and convincing test may

well apply to issues of admissibility arising under [the

confrontation clause, it nonetheless directed the

Bennett had been established only by a preponderance

of the evidence. (7a) The affirmance of this ruling by

the Second Circuit, clearly adopting a preponderance

standard, thus creates a direct conflict with the view

of the Fifth Circuit on this issue. In United States v.

Thevis, 665 F.2d 616 (5th Cir.), cert. denied sub. nom.

Evans v. United States, 456 U.S. 1008 (1982), the court

held that a finding of waiver can be supported only by

clear and convincing evidence that a defendant is re-

sponsible for a witness’ unavailability. Accord, Holtz-

man v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d

591, 597 (2d Dept. 1983). In contrast, both the Sixth and

the Tenth Circuits have agreed with the Second Circuit

that a preponderance test should apply. Steele v. Taylor,

684 F.2d 1193, 1201 (6th Cir. 1982), cert. denied, U.S.

— 103 S.Ct. 1501 (1983); United States v. Balano, 618

F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840

(1980). Due to this conflict and, indeed, to the uncer-

tainty reflected by the Second Circuit, this petition

should be granted.

III

A Clear and Convincing” Evidentiary Standard

Should Be Employed When Determining Whether

A Defendant Has Waived His Confrontation

Rights.

Beyond the conflict among the Circuits, there is the

more basic issue of which standard of proof should

apply in determining whether there has been a waiver.

On this issue, the Fifth Circuit’s reasoning in Thevis is

compelling. The court there focused upon the fact that

hearsay issues involve questions concerning the relia-

bility of evidence. See Ohio v. Roberts, 448 U.S. 56, 66

(1980). The court stated:

Where reliability of evidence is a primary concern,

the Supreme Court has conditioned admissibility

on the “clear and convincing” standard. The

prosecution, for example, must prove by clear and

convincing evidence that an in-court identifica-

tion that follows a tainted identification has a

reliable independent basis before the identifica-

tion can be admitted into evidence...Thus, because

confrontation rights are so integral to the ac-

curacy of the fact-finding process and the search

for truth...we conclude that the trial court was

correct in requiring clear and convincing evidence

of a waiver of this right.

665 F. 2d at 631.

In contrast, as noted in Thevis, the preponderance

of the evidence test is generally applicable only in

situations where an evidentiary determination involves

the exclusionary rule, which is aimed at deterring police

misconduct. Thus, for example, in Lego v. Twomey, 404

U.S. 477, 489 (1972), this Court established a prepon-

derance test for determining the voluntariness of a con-

fession. Clearly then, since the admission of hearsay

raises questions of reliability, the clear and convinc-

ing test should apply.

In this case, the Second Circuit did recognize this

distinction, noting that “the right of confrontation is

closely related to the reliability of testimonial evidence,

land that, accordingly,] the clear and convincing test

may well apply to issues of admissibility arising under

it”. (33a), the court then stated that “waiver by miscon-

duct is an issue distinct from the underlying right of con-

frontation and not necessarily governed by the same

rule concerning burden of proof.” (33a) For this reason,

the court opted for the preponderance standard, noting

that “there is hardly any reason to apply a burden of

proof which might encourage behavior which strikes at

the heart of the system of justice itself.” (33a)

Yet this analysis is surely wrong. Given the

Confrontation Clause’s focus upon reliability, it is

inadvisable to dilute this Constitutional protection by

requiring a less than strenuous burden of proof. If one is

concerned with ensuring that unreliable evidence be kept

from the jury, why invite its admission by requiring the

government to prove so little?

Indeed, the vice of requiring proof only by a pre-

ponderance of the evidence is forcefully demonstrated in

this case. Quite simply, no one reading the transcript of

Mastrangelo’s hearing could be comfortably assured

that Mastrangelo did in fact have prior knowledge of the

plan to kill Bennett. Petitioner recognizes that Judge

McLaughlin’s findings of fact are not subject to sub-

stantial challenge here. However, if the evidence pre-

sented by the government at the hearing did in fact

meet the preponderance standard, it is therefore a stand-

ard wholly incapable of protecting a defendant’s con-

frontation rights. To make this point clear, a further

review of the evidence adduced at the post-remand

hearing is necessary.

A. Nicholas Berardi’s Testimony

Unquestionably, Berardi was the most crucial

government witness at the hearing, for it was he who

offered the only evidence even remotely suggesting that

Mastrangelo had knowledge of the murder prior to its

occurrence. Yet, his testimony hardly establishes with

any certainty that Mastrangelo had prior knowledge of

the plan to kill Bennett.

1. The Substance Of Berardi’s Testimony Is

Unclear

In the final analysis, the only unequivocal aspect of

Berardi’s testimony concerning Mastrangelo related to

the alleged “phone call” conversation. After extensive

cross-examination, questioning by the court, and being

confronted with the agent’s draft report of his meeting

with Walter Mack, Berardi finally made clear that the

phone call concerning Bennett was made without

's knowledge and that Mastrangelo learned

about the phone call only after he complained about the

murder to his “friends”. Beyond this information, which

certainly does not in any way support the inference that

Mastrangelo had prior knowledge of the murder, see

iid: enue eee

pletely bewildering and self-contradictory account of

—

n 1 *

what he knew about Mastrangelo. Almost from the

beginning of his appearance before the court, the witness

refused to be pinned down on the implications of his

testimony. When asked whether Mastrangelo had in-

dicated to him in substance that “a decision was made

that the witness had to be killed”, Berardi responded:

“I can’t answer that because I can’t -- I would be giving

you an opinion.” (H 227) Later on, after being con-

fronted with the draft report of his conference with

Walter Mack, he admitted that he had previously stated

that Mastrangelo “did not know about the murder and

did not know the murder was going to occur.” (H 431)

Then, when asked about the significance of that state-

ment, he suggested that he was saying only that Mas-

trangelo did not know who the actual killer was. (H 443-

45) 7

Quite clearly, the question that logically flowed

from this last answer was whether Mastrangelo knew,

in general, that someone was going to kill Bennett. Yet

this is the question that was never satisfactorily ans-

wered. At one point, Berardi said that Mastrangelo did

have such knowledge. (H 444) Yet, he later appeared to

retract this conclusion when, in answer to the court’s

questioning concerning this supposed conclusion, he

stated: “I’m sticking to my statement of what he told me

in November. Phone call was made and the guy had to

get whacked out.” (H 448)

This equivocation, when viewed in conjunction with

(1) the agent’s draft report which attributed statements

to Berardi that were clearly exculpatory of Mastrangelo;

(2) Walter Mack’s vague characterizations of Berardi’s

“organization” theory (H 505-07); and (3) a stipulation

that the agent could not recall whether or not Berardi

believed that Mastrangelo knew about the murder

before it occurred, leads inexorably to the conclusion

that it is still unclear what Nicholas Berardi was saying

® The District Court recognized Berardi’s shortcomings as a wit-

ness when, in response to Walter Mack’s observation that “you do

have to work at times to find out precisely what he [Berardi] has to

say”, it stated: “That is the understatement of 1983.” (H 471)

J. v1 gti tA 8 2

e NE EY Oe Bey een Sa «ge TY CRT SiMe stot Ste

about Mastrangelo. The witness never unequivocally

stated his beliefs about what Mastrangelo knew and

when he knew it.

2. Even If Berardi Believed That Mastrangelo

Had Prior Knowledge Of The Murder, It Is

Difficult To Identify A Rational Basis For This

Conclusion.

One of few things clearly established by Berardi’s

facts sufficient to justify the inference that Mastrangelo

had prior knowledge of Bennett’s murder.

Throughout his testimony, Berardi was constantly

ae. aay Fe Fabia

8 7 .

In other words, Berardi was unable to point to one

additional ground for his views beyond Mastrangelo’s

alleged statements to him about the phone call. Indeed,

when pressed by the court on this point, Berardi ad-

mitted that the “sole source” of his conclusion was

“what he [Mastrangelo] told me in November. Phone

call was made and the guy had to get whacked out.”

(H 343)

3. Berardi’s Testimony Was Not Credible.

Berardi’s testimony had severe credibility problems

because (a) he had a strong motive to testify falsely, and

(b) part of his testimony at the hearing, including one

crucial corroborating detail of his Mastrangelo story,

was shown to be false.

a. Berardi had a strong motive to give false

testimony.

Beyond Berardi’s long criminal history, see fn.6,

supra, which in itself demonstrates that honesty is not

one of his virtues, there lies the simple fact that Berardi

had every incentive to create, out of whole cloth, a story

that would incriminate Mastrangelo and thereby please

the government. At the time of the hearing, Berardi was

In Berardi’s view, his cooperation with the government

was “{tJhe only shot I got” (H 416) to obtain a sentence

reduction. It is also clear that his testimony about

Mastrangelo was tied to hopes of improving his situa-

tion vis-a-vis the New York State homicide charges. It

should be recalled that Berardi first testified under oath

about Mastrangelo in April, 1982. (H 417) At that time,

he was facing New York State charges of murder in the

second degree (H 418), N.Y. Penal Law §125.25, a crime

which calls for a minimum sentence of 15 years to life

hati ee ae? 6 Seka

meer

Fue

ae 98

imprisonment. N.Y. Penal Law 570.00. It was only after

testifying about Mastrangelo in the grand jury that, in

December, 1982, Berardi was permitted to plead guilty to

manslaughter. (H 419) Thus, prior to cooperating with

the government (a cooperation which extended to mat-

ters other than Mastrangelo’s (H 411)), Berardi was fac-

ing a possible 18 years or more of imprisonment.

The prospect of an extraordinarily long prison sen-

tence gave Berardi every motive to lie. His testimony,

although obscure, showed that he is by no means un-

intelligent. He surely realized the importance of the

Mastrangelo case to the government and recognized

that providing “evidence” of Mastrangelo’s involve-

ment in Bennett’s murder could.only be a boon to his

chances for an early release from prison. For this reason

his testimony should be considered with a bushel, rather

than a grain, of salt.

b. Berardi’s testimony at the hearing was

untruthful.

Admittedly, the mere existence of a motive to lie

does not prove that a witness has in fact heen untruth-

ful. o However, there is more here than just motive. That

is, Berardi’s credibility was further damaged by the fact

that parts of his testimony at the hearing were shown

to be false.

Berardi’s testimony as to his motives for giving evi-

dence was, at a minimum, very misleading. Initially, he

stated that he was testifying because the government

had agreed to make the extent of his cooperation

“known to certain parties”. (H 213) On cross-examina-

tion, more “details” about his expectations were elicited.

Berardi gave the clear impression that Judge Stewart

had denied his motion to reduce sentence on the extor-

tion charge (H 259) and that he expected, “with my

record, I got to do six-eight” on the federal charge.

10 Analogously, that Mastrangelo may have had a motive to kill

aa does not prove that he had any prior knowledge of the

(H 262) As for the state sentence, Berardi stated: “I

haven’t received nothing, if that’s what you mean.

On the matter. I have - I still have consecutive sen-

tence.” (H 261) According to Berardi, he was testifying

only in exchange for a letter to the Federal Parole Board

and a letter in support of an application for clemency on

the manslaughter charge. (H 262) Berardi stated,

though, that he did not place much value on these

letters (H 408) and that “I’m not here for help.” (H 262)

Yet, on a subsequent cross-examination that took

place after the government provided defense counsel

with a redacted transcript of Berardi’s April, 1982, grand

jury testimony, a wholly different story emerged. It

became clear that Berardi had more at stake than a few

“meaningless” letters from the United States Attorney’s

Office. In fact, he had lied in insisting that he was “not

here for help” (H 262) because, as discussed above,

Berardi’s motion for reduction of sentence before Judge

Stewart was still pending and his hopes for that motion

being granted were tied to his cooperation with the

government. (H 415-16) Similarly, Berardi had pre-

viously misled the court concerning the connection be-

tween his Mastrangelo testimony and his New York

State homicide charges. While it was true that, despite

his cooperation, he had received a consecutive sentence

for this crime, he had neglected to mention that, at the

time he first testified against Mastrangelo, he was fac-

ing the far more serious charge of second degree murder.

Indeed, before being confronted with his prior testi-

mony, Berardi continued to insist that he had pleaded

guilty prior to his grand jury testimony (T 416) and

implied that New York State had not charged him with

anything more serious than manslaughter. (H 416-17)

But there is more than these attempts by Berardi to

camouflage his motives for testifying and

falsely inflate his credibility. In fact, Berardi’s testi-

mony about Mastrangelo was marred by a critical lie.

government agent with whom he dealt. (H 253, 297, 429,

435, 449) Berardi, who allegedly made this call just five

minutes after his conversation with Mastrangelo (H 449),

testified that, in addition to reporting what Mastrangelo

had said to him, he also told the agent that “this kid,

to my eyes, he’s getting weak and...I said I think you

should get the Bronx - the Brooklyn office, I think you

could move this kid.” (H 297)

This aspect of Berardi’s testimony was crucial, for

it strongly corroborated the rest of his testimony about

Mastrangelo. That is, it is virtually inconceivable that

a government informant, greatly in need of the govern-

ment’s help, would not immediately contact his control

agent after acquiring evidence about the murder of a

government witness. As noted, Berardi was not stupid

and he surely would have recognized the importance of

the information he allegedly obtained from Mastrangelo.

Yet, it is clear that this critical part of Berardi’s

story was a complete fabrication. This stipulation con-

cerning the expected testimony of the agent with whom

Berardi allegedly spoke establishes that Berardi never

reported his supposed conversation with Mastrangelo.

Rather, the agent did not recall hearing the name

Richard Mastrangelo until the February 26, 1982, meet-

ing between Berardi and Walter Mack. (H 519) Surely,

the agent’s recollection is controlling, as federal agents

do not “forget” about information concerning the mur-

der of a government witness. If Berardi actually had

spoken to the agent in November, 1981, common sense

leads one to the conclusion that the agent would have

acted upon this information or, at least, remembered it.

Also worth noting in this context is the fact that, prior to Walter

Mack’s February, 1982, meeting with Berardi, the agent never even

suggested to Mack that Mastrangelo had any information about the

Bennett murder. (H 489-90) If Berardi had told the agent about Mas-

trangelo’s “admission”, the agent undoubtedly would have men-

tioned it to Mack.

B. Joseph Bennett’s Testimony

The value of Joseph Bennett’s testimony is dubious

for two reasons. First, his story was so inherently in-

credible that it defies belief. Second, it was hardly proba-

tive on the issue of Mastrangelo’s involvement in James

Bennett’s murder.

According to Bennett, he was introduced to Mas-

trangelo through a mutual friend, Louis Collelo. (H 32-

33) Yet, when this initial meeting took place, Collelo

was not present. Rather, Bennett arrived at Mastrange-

lo’s shop and simply asked Mastrangelo if he had any

drugs to sell. (H 34-35) Even though Bennett was a com-

plete stranger, Mastrangelo allegedly offered to sell

him “speed”. (H 35) This scenario, though, surely never

occurred. Common sense, this court’s past experience in

hearing narcotics appeals, as well as Berardi’s testi-

mony that Mastrangelo was “closed-mouthed” (H 215)

leads to the conclusion that if Richard Mastrangelo had a

been a seller of narcotics, he would not have spoken o

openly to a total stranger.

Next, there is Bennett’s testimony that Mastrangelo

offered him an opportunity to help off-load a boat,

presumably the “Terry’s Dream”, containing mari-

juana. (H 42-46) During this period, Bennett and Mas-

trangelo were apparently dealing in drugs on a regular

basis. (H 41-42) But when offered the opportunity to

make a substantial amount of money on a narcotics-

related transaction, Bennett supposedly refused because

he had jumped bail. It simply makes no sense that

Bennett would be willing to sell drugs, a very risky

proposition, but would refuse, out of caution, to unload

a ship. This leap of logic in Bennett’s testimony is yet

another suggestion that his testimony was the product

of a creative and opportunistic imagination.

Of course, the most crucial part of Bennett’s testi-

mony related to the alleged conversation with Mas-

trangelo in the Canarsie Bar where Mastrangelo ap-

parently asked Bennett to speak to his uncle, James

Bennett, on his [Mastrangelo’s] behalf. That Mas-

trangelo would have even known that James Bennett

was the witness’ uncle is open to question because,

according to the witness, he had no relationship with his

father’s side of the family and had spoken to his uncle

only “once maybe 20 years ago.” (H 56) Yet, perhaps

through some variety of psychic power, Mastrangelo did

know that James Bennett was Joe Bennett’s uncle. More

incredible, though, is that Mastrangelo then allegedly

told Joe Bennett that, in any event, James Bennett

would never testify against Mastrangelo. (H 50) Surely,

as a matter of common sense, it is obvious that if Mas-

trangelo believed that Joe Bennett was close enough to

his uncle to be able to stop him from testifying, he would

not then have suggested to Joe Bennett that his uncle

was in some sort of danger.

Casting further doubt on this part of Bennett’s

testimony are his actions after he agreed to cooperate

with the federal government in November, 1979. At that

point, he was facing (1) New York State charges of

assault and robbery (H 24); (2) New York State charges

of possession of forged instruments (H 24); (3) New York

State bail jumping charges (H 24); (4) New York State

charges of possession of stolen property (H 25); and

(5) federal charges involving the theft and resale of

stolen motor vehicles. (H 26) With all of these charges

hanging over him, it is not surprising that Bennett

offered his complete cooperation to the government. As

Bennett himself admitted, it was to his benefit to tell

the government everything he knew. (H 68) Yet, when he

began cooperating with the government in November,

1979, he failed to mention either that his own uncle

might be in danger or, more generally, that he had in-

formation about an as yet unsolved major marijuana

importation case.“? Further, Bennett continued to re-

main silent about the Canarsie Bar conversation even

after he learned that his uncle had been killed. Although

he was upset about the murder of his uncle (H 77) and

although he was cooperating with the government at

‘2 According to the docket entries in this case, the grand jury did

not return its indictment against Mastrangelo until June 17, 1980.

that time (H 62), Bennett did not inform the government

of his information about Mastrangelo until June of 1981

- some two months after his uncle’s murder. (H 78)

A cooperating witness who has everything to gain

from full disclosure to the government does not neglect

to mention that his own uncle is in danger because that

uncle is helping the government solve a major drug case.

The witness’ explanation on this point was that, due to

his lack of a close relationship with his father’s side of

the family (H 54), it never “dawned” on him to mention

the alleged threat to his uncle. However, to accept this

explanation is to reject common sense. In light of the

facts that Bennett knew a number of people who were

close to either James Bennett or his brother, Frank

Bennett, and that Joe Bennett, himself, was angry over

his uncle’s murder (H 77-78), the “lack of personal con-

nection” argument does not hold water. The far more

compelling explanation here is that there was no con-

versation between Mastrangelo and Bennett in the

Canarsie Bar. Rather, Joseph Bennett invented it in the

hopes of improving his own situation.

As for the probative value of Joe Bennett’s testi-

mony, the only “revelation” it contained was Mas-

trangelo’s alleged statement that James Bennett would

never testify against him. (H 50) Admittedly, if this

statement had been made shortly before Bennett’s mur-

der, it would be solid evidence of Mastrangelo’s culpa-

bility. But, according to Bennett, Mastrangelo made

this statement in early 1979 (H 47-49), more than two

years before James Bennett was killed. Given the am-

biguity of Mastrangelo’s alleged statement, this gap in

time does not support the inference that Mastrangelo

knew of the plot to kill Bennett.

As Joseph Bennett admitted, Mastrangelo’s sup-

posed statement could have meant anything. (H 52)

As the District Court suggested, Mastrangelo might

have been suggesting that he was going to offer James

Bennett a bribe. (H 51-52) It also could have been an

expression of Mastrangelo’s belief that James Bennett

would ultimately refuse to inculpate an old friend from

the neighborhood. Or it could have been an expression

of bravado by Mastrangelo. Indeed, Mastrangelo might

have been merely repeating vague assurances given to

him by others.

All of these interpretations are sensible. Therefore,

it would be absurd to conclude that Mastrangelo was, in

fact, revealing to Bennett knowledge of a plot to kill

Bennett’s uncle. Indeed, given that this supposed con-

versation took place two years prior to James Bennett’s

murder, it is highly unlikely that there was even a plan

afoot at that time to kill the witness. Rather, as sug-

gested by Mastrangelo’s alleged overtures, less drastic

methods of dealing with James Bennett were being

pursued.

Thus, Bennett’s testimony does not show that Mas-

trangelo had prior knowledge of the plot to kill James

Bennett. Even if his tale about the Canarsie Bar is true,

it only establishes that Mastrangelo held the belief that

James Bennett would not testify against him. It does not

then lead to the further conclusion that Mastrangelo

either knew or believed that, should James Bennett de-

cide to help the government, he would be murdered. In-

deed, if Mastrangelo did consider murder to be a possi-

bility, he undoubtedly would not have spoken about it

to Joe Bennett, whom he believed to be close enough to

his uncle to intercede on Mastrangelo’s behalf.“

As noted, petitioner recognizes that it would be fool-

hardy to challenge the legitimacy of Judge McLaugh-

lin’s evidentiary findings. Although petitioner still con-

tends that the government did not even meet a prepon-

derance of the evidence burden, it is conceded that Judge

McLaughlin’s finding was not clearly erroneous. Yet, it

is precisely because Judge McLaughlin’s finding was

1 Further, Joseph Bennett's own testimony can be viewed as

providing support for the claim that Mastrangelo’s statement did not

presage a murder plot. If Joseph Bennett did not invent the Canarsie

Bar conversation, the only other credible explanation for his failure

to mention it until June of 1981 is that he personally did not believe

that Mastrangelo’s statements suggested violence to his uncle.

arguably correct that the preponderance of the evidence

standard should not be adopted in connection with de-

termining whether a criminal defendant has waived his

Sixth Amendment rights.

A defendant’s right to confront the witnesses

against him is a singularly important constitutional

right. Plainly stated, he should not be stripped of that

right upon evidence as paltry as that offered by the

government in this case. Indeed, t here is a presump-

tion against the waiver of constitutional rights....”

Brookhart v. Janis, supra, 384 U.S. at 4. However, by

adopting a preponderance of the evidence standard, the

Second Circuit has significantly diminished the

protections of the Confrontation Clause, making it

virtually impossible for a criminal defendant to refute a

claim of waiver. That is, if the slight and unconvincing

evidence in this case legitimately formed a basis for a

finding of waiver, it is virtually impossible to conceive of

a situation where the government could not make a

showing of similar strength. Surely, the Confrontation

Clause deserves more respect.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the Court of Appeals for

the Second Circuit.

Respectfully submitted,

GERALD L. SHARGEL

Attorney for Petitioner

150 East 58th Street

New York, New York 10155

(212) 486-1717

JUDD BURSTEIN

On the Petition

;

APPENDICES

* — 1 * — ann „ e

Appendix A

Opinion of United States Court of Appeals

Decided November 4, 1983

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 82-1148

No. 140 — August Term, 1982

Submitted August 4, 1983, Decided November 4, 1983

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V. -

RICHARD MASTRANGELO,

| Defendant-Appellant.

Before: FEINBERG, Chief Judge; OAKES

and WINTER, Circuit Judges

Appeal from a decision of the United States Dis-

trict Court for the Eastern District of New York

(McLaughlin, Judge) holding that a preponderance of

the evidence suggests that appellant Mastrangelo had

prior knowledge of a plot to kill a government witness.

Affirmed.

Gerald L. Shargel

New York, New York

(Judd Burstein, of counsel)

For Appellant Mastrangelo

William J. Muller, Assistant United

Sheridan,

States Attorney, of counsel), for Appellee

United States of America.

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Appendix A - Opinion of United States Court of Appeals

Decided November 4, 1983

Per Curiam:

Familiarity with our prior opinions, United States v.

Mastrangelo, 662 F.2d 946 (2d Cir. 1981), cert. denied,

102 S.Ct. 2236 (1982) and 693 F.2d 269 (2d Cir. 1982),

is assumed.

On remand after our most recent decision, Judge

McLaughlin held a hearing and found that the govern-

ment had proven by a preponderance of the evidence

that the appellant had prior knowledge of the plot to

kill James Bennett. Appellant concedes this finding is

not clearly erroneous. He argues, however, that we

should decline to follow our decision that prior knowl-

edge and a failure to warn appropriate authorities is

sufficient to constitute waiver of the right to confronta-

tion and that such waiver need be shown by only a

preponderance rather than by clear and convincing

evidence. Judge McLaughlin found that the latter test

had been satisfied but that the former had not been.

We adhere to our prior opinion, which is also supported

by Steele v. Taylor, 684 F.2d 1193, 1202-03 (6th Cir.

1982), cert. denied, 103 S.Ct. 1501-02 (1983).

The judgment is, therefore, affirmed.

Appendix B

Order of United States Court of Appeals

on Petition fon Rehearing and Suggestion for

Rehearing In Banc

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse, in the City of New York, on

the 19th day of December, one thousand nine hundred

and eighty-three.

No. 82-1148

Filed: December 19, 1983

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

RICHARD MASTRANGELO,

Defendant-Appellant.

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the appellant, Richard Mastrangelo,

Upon consideration by the panel that heard the

appeal, it is

ORDERED that said petition for rehearing is

DENIED.

It is further noted that the suggestion for rehearing

in banc has been transmitted to the judges of the court

in regular active service and to any other judge on the

panel that heard the appeal and that no such judge has

requested that a vote be taken thereon.

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Appendix B

Order of United States Court of Appeals

on Petition for Rehearing and Suggestion for

Rehearing In Banc

Js;

A. Daniel Fusaro

Clerk

by Victoria C. Dalton

Deputy Clerk

Appendix C

Opinion of United States District Court

Dated April 15, 1983

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

RICHARD MASTRANGELO

Defendant.

No. 80 CR 285 (S-1)

Defendant was convicted in the United States

District Court of conspiracy to possess, with intent to

distribute, controlled substances, importation of con-

trolled substances and obstruction of justice, and he

appealed. The Court of Appeals, 693 F.2d 269, remanded

for evidentiary hearing on issue of whether defendant

effectively waived his rights under confrontation clause

to admission of grand jury testimony of deceased

government witness. On remand, the District Court,

McLaughlin, J., held that: (1) evidence was sufficient

under preponderance standard to support finding that

defendant had prior knowledge of plot to murder govern-

ment witness and failed to warn appropriate authorities;

therefore, defendant through his own misconduct,

waived his confrontational objection to use of murdered

witness’ grand jury testimony, and (2) Government’s

obligation under rule allowing admission of hearsay if

statement is more probative on point for which it is

offered than any other evidence which proponent can

procure through reasonable efforts did not require it to

determine, in order to have grand jury testimony of

deceased witness admitted at defendant’s trial, that

second witness was not subject to a court order

Motion for new trial denied.