Petition — Schwartz v. United States

Office - $ eC

83-1746 FILED

APR 27 1986

No.

ALEXANDER L. STMVAS.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

ABE R. SCHWARTZ,

Petitioner

VU.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF APPEALS

FOR THE THIRD CIRCUIT

Jeffrey M. Miller, Esquire

NASUTI & MILLER

1325 Spruce Street

Philadelphia, PA 19107

(215) 545-8488

Attorney for Petitioner

Abe R. Schwartz

PACEARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA 19173 (215) 236-2008

QUESTIONS PRESENTED

1. Whether the Court of Appeals for the Third Cir-

cuit erred in holding that the evidence against Petitioner

was sufficient to uphold Petitioner’s conviction for con-

spiracy to violate the Hobbs Act, where the evidence

showed that Petitioner did nothing more than refer an

undercover informer to a co-defendant and “vouch” for

the informer’s bona fides, where a prior decision in the

Third Circuit held such evidence to be insufficient as a

matter of law.

2. Whether a most substantial disparity of evidence

presented against co-defendants in a multi-defendant

conspiracy trial can, in itself, require severance in order

to insure the due process rights of the moving party,

and, if so, whether the Court of Appeals erred in holding

otherwise in the circumstances of this case.

PARTIES TO THE PROCEEDING

The caption of the case contains the names of the

parties to the proceeding in this Court.

TABLE OF CONTENTS

Page

I ry i

Parties to the Proceeding .................... i

EE a l

Statement of Jurisdiction .................... 1

Constitutional Provisions Involved ............. 2

ee 2

Reasons for Allowance of the Writ of Certiorari .. 5

I. The Court Of Appeals For The Third Circuit

Has Rendered A Decision Jn Conflict With A

Prior Decision Of The Same Circuit ...... 5

II. The Court Of Appeals For The Third Circuit

Has Rendered A Decision In Conflict With

The Decisions Of Other Federal Courts Of Ap-

Olek snes e's.c ous casacesies ee 12

Dee Wek. kes cue Cues es anes owes 19

Appendices:

ER a A-1

EE Zs 6G & 60. 60.6 0.0,0 0 0-06 66 6:06 aides A-2

I RM cia 5 « 5-6-2 o'a oss 0 40 5-008 Se A-5

ES a ae bso obiba es baoe eee es A-9

TABLE OF AUTHORITIES

Cases: Page

Blumenthal v. United States, 332 U.S. 539 (1947) 16, 17

Glasser v. United States, 315 U.S. 60 (1942) .... 15

In Re Winship, 397 U.S. 358 (1970) ........... 11

Jackson v. Virginia, 443 U.S. 307 (1979) ..... 11, 12

Kotteakos v. United States, 328 U.S. 750 (1946) . 16

Krulewitch v. United States, 336 U.S. 440 (1949) 14

McHale v. United States, 398 F.2d 757 (D.C. Cir.)

cert. denied, 393 U.S. 985 (1968) .......... 15

Morei v. United States, 127 F.2d 827 (6th Cir.

RP re pee ery Gg Pe ree 7

Robinson v. United States, 262 F.2d 645 (9th Cir.

SD. hb 6b Gee hen be ves Cee 7

Sears v. United States, 343 F.2d 139 (5th Cir. 1965) 8

United States v. Atkins, 437 F.2d 308 (8th Cir.),

cert. denied 412 U.S. 931 (1973) ......... 9, 10

United States v. Branker, 395 F.2d 881 (2d Cir.

1968), cert. denied in Lacey v. United States,

me 0. DO CSD kee spoke a ekdene es 17

United States v. Chase, 372 F.2d 453 (4th Cir.

SED. koe ee we Rees BO CEs ea ekes 8

| Terre co Peer yr rr ea. 16

oS REARS Eee ae 14

United States v. Kelly, 349 F.2d 720 (2d Cir. 1965),

cert. denied, 384 U.S. 947 (1966) .......... 16

United States v. Mardian, 546 F.2d 973 (D.C. Cir.

ED 66 da Waiwsesaanee copes ke aa 15, 16

TABLE OF AUTHORITIES — (Continued)

Page

United States v. Martino, 648 F.2d 367 (5th Cir.

1981), cert. denied, 456 U.S. 949 (1982) .... 8

United States v. Moses, 220 F.2d 166 (3d Cir.

EE vo kos 2s Coes tn Coke 5, 6, 7, 8, 9

United States v. Peterson, 524 F.2d 167 (4th Cir.

1975), cert. denied, 423 U.S. 1088 (1976) ... 8

iv

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

ABE R. SCHWARTZ,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

A copy of the Judgment and Commitment Order of

the United States District Court for the Eastern District

of Pennsylvania dated August 1, 1983 is contained in

Appendix A. The Opinion and Judgment of the Court of

Appeals for the Third Circuit was filed om March 12,

1984, and has not been published. A copy thereof is

contained in Appendix B. The Memorandum and Order

of the United States District Court for the Eastern Dis-

trict of Pennsylvania is contained in Appendix C. A copy

of that portion of the Government's Reply Brief on Ap-

peal, referred to by the Court of Appeals in its Order, is

contained in Appendix D for this Court’s convenience.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Third Circuit sought to be reviewed was entered

and dated on March 12, 1984. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

1

2

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the

United States provides as follows:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment 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 dan-

ger; nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a wit-

ness 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.”

STATEMENT OF THE CASE

This is a Petition for Certiorari arising from the fol-

lowing facts. On May 16, 1983, Petitioner was found

guilty in the United States District Court for the Eastern

District of Pennsylvania, after a jury trial, of conspiracy

to violate the Hobbs Act in violation of 18 U.S.C. §1951.

Petitioner was charged only in the one conspiracy count

of a seventeen count indictment, but was tried jointly

with four co-defendants who were charged with and

convicted of numerous substantive offenses in addition

to the conspiracy. The basis for federal jurisdiction of the

District Court was 28 U.S.C. §1291.

Petitioner was sentenced on July 8, 1983 to four (4)

years of incarceration and a fine of $10,000. On March

12, 1984, the Court of Appeals for the Third Circuit en-

tered a Judgment affirming Petitioner’s conviction.

The narrative of events leading to this Petition are

as follows. This was a “police corruption” case involving

a 17 count indictment against five Philadelphia police of-

ficers including Petitioner. Count one of the indictment,

a conspiracy charge, alleged that Petitioner and his four

co-defendant police officers conspired to use their offi-

cial positions to extort pay-offs from businesses in return

3

for allowing the businesses to operate free from

harrassment by the police department.'! The remaining

sixteen counts of the indictment charged various sub-

stantive offenses including the actual pay-offs to police.

As mentioned, Petitioner was charged in only the con-

spiracy count and was neither named in, nor connected

with, the remaining sixteen substantive counts.

The Government's evidence against Petitioner con-

sisted of testimony by informant Donald Hersing and

several recorded conversations between Hersing and Pe-

titioner. This evidence revealed that Petitioner had been

social friends with informant Donald Hersing who, un-

beknownst to Petitioner, was an undercover government

informant. (T — 3-19-30).? Before and during the period

of the alleged conspiracy, Hersing was operating a mod-

eling studio and was apparently making pay-offs to one

officer George Woods.* The payments from informant

Hersing to George Woods were supposed to insure that

Hersing’s studios would not be beset by arrests. (T — 1-

87-90). There was no contention by the Government nor

proof that Petitioner was involved, in any manner, with

Woods’ extortion, receipt of payments and/or police pro-

tection. According to the testimony of informant

Hersing, the police harrassment continued even though

he had been paying Woods and his partner.

Hersing confided to his friend, Petitioner, that he

had been making pay-offs to Woods and complained that

arrests continued to occur at his studios despite the fact

of these pay-offs. (T — 1-143-145). At this point, Peti-

tioner suggested to Hersing that such payments would

1. John DeBenedetto was Inspector in command of the Central

Police Division. John Smith was a Lieutenant assigned to the Cen-

tral Police Division. Lawrence Molloy and Vincent McBride were

police officers in the Central Division, and Petitioner was a Detec-

tive responsible for reviewing gun permit applications at the East

Detective Division.

2. “T” refers to the transcripts of trial and is followed by the

volume of the transcript and the page number.

3. Woods was a uniform police officer who was not a co-de-

fendant in this case. Woods was indicted separately, tried, and

found guilty.

4

probably be better made to high-ranking police officers

in order to curtail police harrassment. (T — 1-87-90;

1-143-146).

Petitioner never arranged any meetings for the in-

formant Hersing, nor attended any conspiratorial meet-

ings, nor had any conspiratorial conversations with any

of the co-defendants. However, according to the taped

recording that was played at trial, alleged co-conspira-

tors Lieutenant Smith and Police Inspector DeBenedetto

stated, during a conversation with informant Hersing,

that Petitioner had “vouched” for Hersing to Inspector

DeBenedetto. The informant testified that he under-

stood “vouching” to mean that he had been represented

by Petitioner as being “good people.” (T — 3-45-46).

Hersing eventually called DeBenedetto and arranged

the meeting where the pay-offs were commenced. (T —

1-150-160). Petitioner was not present at this or any

other subsequent meeting between Hersing and any of

the co-defendants and did not receive any of the pay-off

money.

The Government’s proof with respect to Petitioner’s

four co-defendants overwhelmingly demonstrated that

they were involved in a massive scheme to collect pay-

offs from various prostitutes, pimps, gamblers and pri-

vate club operators in return for protection from police

interference. The Government’s case against Petitioner’s

co-defendants consisted of testimony of some 28 “vic-

tim” witnesses concerning over $130,000 in illicit pay-

offs. Scores of documents and tapes confirmed the testi-

mony of many of these witnesses.

It was undisputed that Appellant never extorted,

asked for, or received any of the pay-off money

($130,000) involved in this case (T — 7-23-34), and

none of the 75 documents introduced had any relevance

nor was probative with respect to Petitioner. Of the 28

Government witnesses who testified, only three men-

tioned Petitioner’s name, and of those three, only one

witness, informant Donald Hersing, argubly offered any

incriminating testimony as to Petitioner, as described

above.

5

Petitioner filed a pretrial motion to sever his case

from his co-defendants on the grounds that the evidence

against the co-defendants was so voluminous in relation

to the evidence against Petitioner, that a joint trial would

result in a prejudicial “spillover”. It was the contention

ot Petitioner, in pretrial motions, that he would be se-

verely prejudiced by the Government parading some 28

or so extorted witnesses before the jury, al! of whom

would testify as to their being victimized by the ether co-

defendants in having to make pay-offs or suffer the con-

sequences. In addition, the 75 or so documents submit-

ted into evidence by the Government were in no manner

probative to the activities of Petitioner. As mentioned

earlier, Petitioner did not receive any of the $130,000.

The District Court denied the motion to sever.

At the close of the Government’s case, Petitioner

moved the District Court for a judgment of acquittal on

the ground that the evidence relating to Petitioner was

insufficient as a matter of law to support the conspiracy

conviction. (T — 6-64-72). The motion was denied and

Petitioner was convicted on the conspiracy count, lead-

ing ultimately to this petition.

REASONS FOR ALLOWANCE OF

THE WRIT OF CERTIORARI

I. THE COURT OF APPEALS FOR THE THIRD CIRCUIT

HAS RENDERED A DECISION IN CONFLICT WITH

A PRIOR DECISION OF THE SAME CIRCUIT.

Petitioner argued at trial and on appeal that the evi-

dence presented against him was insufficient as a mat-

ter of law to uphold his conviction under the reascning

of the Third Circuit in United States v. Moses, 220 F.2d

166 (3d Cir. 1955). The Court of Appeals affirmed Peti-

tioner’s conviction, stating simply that “we are satisfied

that the evidence was sufficient.” (App. B). Petitioner re-

spectfully contends that the factual scenario presented

in this case is virtually identical to that presented in

Moses and that the Third Circuit has therefore rendered

a decision in direct conflict with its earlier decision in

United States v. Moses, which this Court should resolve.

6

As mentioned in the Statement of the Case, supra,

the Government’s evidence showed that Petitioner and

the informant Hersing were social friends before the in-

ception of the alleged conspiracy, that Hersing

complained to Petitioner that he (Hersing) was making

pay-offs to uniformed officers in return for being allowed

to operate his modeling studios without police

harrassment, but that the studios were being raided

nonetheless. In response to Hersing’s complaint, and at

Hersing’s behest, Petitioner suggested that Hersing

might get better results if he paid higher ups, ie.

DeBenedetto, instead of the uniformed officers.

While Petitioner did not arrange or attend any meet-

ing between Hersing and DeBenedetto or any of the co-

conspirators, Petitioner did “vouch” for Hersing, de-

scribing him as “good people” to DeBenedetto. Petitioner

neither asked for, nor received, anything of personal or

financial value in exchange for the voucher which en-

abled Hersing to approach DeBenedetto,* and this was

the full extent of Petitioner’s involvement in this case.

Petitioner submitted below and asserts once more

before this Court that the evidence presented was pa-

tently insufficient to uphold the conspiracy conviction

according to the Third Circuit’s decision in United

States v. Moses, 220 F.2d 166 (3d Cir. 1955), and that

the Third Circuit Court of Appeals, by finding otherwise

in the circumstances of this case, has rendered a deci-

sion in conflict with its earlier ruling in Moses.

In United States v. Moses, supra, the defendant

Moses was approached by twc ‘indercover narcotics offi-

4. While Petitioner received a Betamax recorder from infor-

mant Hersing, Hersing testified that, in fact, the Betamax recorder

had no connection whatever to the alleged conspiracy (T—3-23, 26-

27), and the Government ultimately abandoned its theory that the

Betamax was a form of pay-off for Petitioner's alleged conspiratorial

activities. The District Court acknowledged this fact (App. C). Peti-

tioner also received “sexual favors” from one of Hersing’s prosti-

tutes. However, the incident occurred before the inception of the al-

leged conspiracy and thus could not possibly be considered a

“pay-off” in return for Petitioner's actions on behalf of Hersing. (T—

1-92-95).

7

cers who told her that they wished to purchase drugs.

Moses responded that she had no drugs availaole, but of-

fered to introduce the agents to her supplier, who would

be visiting her in a half hour. Prior to the arrival of her

supplier, Moses actively attempted to contact another

source without success. When the supplier finally ar-

rived, Moses introduced him to the agents, told him that

the agents were interested in purchasing drugs, and

“vouched” for the agents, telling the supplier that they

were “alright” to deal with. Moses remained present

throughout the meeting between the agents and the

drug supplier although she did not directly participate

any further. Based on this evidence, Moses was con-

victed of aiding and abetting the sale of narcotics.

The Third Circuit reversed the conviction, holding

that such evidence was insufficient as a matter of law to

support the verdict:

“The undisputed facts show the Appellant act-

ing solely at the behest of the prospective buyers

and in their interests. At the buyers’ request she did

two things to facilitate their purchase. She intro-

duced them to the seller and she vouched for their

bona fides... . There was nothing to sow that she

was associated in any way with the enterprise of

the seller or that she had any personal or financial

interest in bringing trade to him. Although appel-

lant’s conduct was prefatory to the sale, it was not

collaborative with the seller. For this reason, the

conviction cannot be sustained.” United States v.

Moses, 220 F.2d 166, at 168 (Emphasis added).

Thus, the Third Circuit has held that the mere in-

troduction of and voucher for one party to another for the

purpose of an illegal transaction is insufficient to

amount to aiding and abetting. See, also, Morei v. United

States, 127 F.2d 827 (6th Cir. 1942) (Evidence that de-

fendant referred informer to heroin supplier and told in-

former to mention defendant’s name so that supplier

would “take care” of informer, was insufficient to uphold

conviction); Robinson v. United States, 262 F.2d 645

(9th Cir. 1959) (Evidence that defendant referred in-

8

former to heroin supplier and gave him telephone num-

bers several times, held insufficient to sustain convic-

tion).

The facts of the present case show that Petitioner

did nothing more, and in fact did less, than the defend-

ant in Moses, inasmuch as Petitioner never “introduced”

Hersing to DeBenedetto, never acted as an

“intermediary” between Hersing and DeBenedetto,

never attended any meetings between Hersing and

DeBenedetto or any of the other co-conspirators, and

never himself met with any of the other co-conspirators

for any purpose. At most, Petitioner merely referred

Hersing to DeBenedetto and vouched for Hersing’s bona

fides. Moses clearly holds that such evidence is insuffi-

cient to support a conviction for aiding and abetting. Pe-

titioner submits that it is also insufficient to support a

conspiracy conviction, since conspiracy requires the

stronger, additional proof of preconcert and collabora-

tion between the defendant and his co-conspirators.

United States v. Peterson, 524 F.2d 167, 174 (4th Cir.

1975), cert. denied, 423 U.S. 1088 (1976).

The only collaboration between Petitioner and a co-

conspirator in the present case is Petitioner’s vouching

to DeBenedetto for informer Hersing. Moses holds that

such evidence is insufficient to amount to aiding and

abetting because it does not show a strong enough asso-

ciation with the enterprise of the principal. United

States v. Moses, supra, at 169. Since conspiracy requires

even more in the way of agreement or connivance than

aiding and abetting, such evidence must also be insuffi-

cient to prove conspiracy. The only other person with

whom Petitioner collaborated in any way was Hersing,

the informant, and the law is clear that there can be no

conspiracy between a defendant and a Government in-

formant “because it takes two to conspire and the Gov-

ernment informer is not a true co-conspirator.” United

States v. Martino, 648 F.2d 367 (5th Cir. 1981), cert. de-

nied, 456 U.S. 949 (1982); Sears v. United States, 343

F.2d 139 (Sth Cir. 1965); United States v. Chase, 372

F.2d 453 (4th Cir. 1967).

9

Petitioner submits that the case sub judice is there-

fore even more compelling than Moses and required a

careful analysis by the Court of Appeals in order to avoid

a conflicting opinion within the Circuit. The Court of

Appeals’ one sentence reply to Petitioner’s argument

makes no mention of Moses, but merely refers the reader

to the Government’s Reply Brief, in which it was argued

that Petitioner’s activities were more similar to those of

the defendant in United States v. Atkins, 437 F.2d 308

(8th Cir.), cert. denied, 412 U.S. 931 (1973), than those

in Moses. (App. D). A short review of Atkins proves oth-

erwise.

Initially, it must be noted that the Atkins court

misinterpreted the facts of Moses. In attempting to dis-

tinguish Moses from the case before it, the Atkins court

stated that (1) the defendant in Moses made no “active

effort” to find a drug supplier for the undercover agents,

and (2) the defendant in Moses was not present when

the sale was consumated. United States v. Atkins,

supra, at 312. A reading of Moses, however, reveals that

when the defendant’s regular supplier (one Cooper) did

not arrive on time, the defendant tried to call a different

supplier (one Mack) to accommodate the agents. Thus,

she did make “active efforts” to secure a supplier. United

States v. Moses, supra, at 168. Furthermore, while the

defendant in Moses was not present at the actual

consumation of the sale, she did attend the initial meet-

ing between the agents and the supplier. United States

v. Moses, supra at 198. The subsequent transaction

would not have been possiile if the defendant had not

introduced and vouched for the agents at that meeting.

Even if the Atkins analysis of Moses was correct,

the case is easily distinguished from the case sub judice.

The defendant in Atkins was asked by a seller of heroin

if she knew any buyers. The defendant replied that she

did not, but proceeded to search for and find a buyer,

whom she introduced to the seller. The defendant was

present throughout the meeting between buyer and

seller, continued to meet with the seller after the

consumation of the sale, and complained that she (the

10

defendant) “had been burned.” United States v. Atkins,

supra, 437 F.2d at 311. In holding that this evidence

was sufficient to support a conviction for aiding and

abetting the purchase of heroin, the Eighth Circuit

placed great stress on the fact that the defendant at-

tended meetings between buyer and seller:

“A logical interence may be drawn that the Ap-

pellant was concerned enough about consumating

or helping to consumate the purchase of heroin that

she went to the bar and introduced (seller) to

(buyer). Moreover, it is fair to infer that the Appel-

lant was not only concerned that (buyer) meet

(seller) while the Appellant was present. . . but

that the Appellant was interested enough in the spe-

cifics of the purchase that she remained at the table

during (buyer’s) conversation with (seller). Once

again, it would have been much safer to simply in-

troduce the parties and leave; her continued pres-

ence can only be taken as an encouragement to

(buyer) to consumate the sale. United States v.

Atkins, 437 F.2d at 311.

By contrast, Petitioner herein did not actively

“search” for someone whom Hersing could pay for pro-

tection, and did not “introduce” Hersing to

DeBenedetto. More importantly for purposes of Atkins,

Petitioner never attended any meeting between Hersing

and DeBenedetto or any other co-defendants, and never

expressed any interest in the financial transactions be-

tween them. Petitioner submits that if this case had

been analyzed according to the reasonsing of the Third

and Eighth Circuits in Moses and Atkins, the evidence

would have properly been held insufficient.

By affirming Petitioner’s conviction on sufficiency

grounds, the Third Circuit has sanctioned the use of evi-

dence which could not possibly meet the requirement of

proof beyond a reasonable doubt, even when viewed in a

light most favorable to the Government. To allow the

conviction to stand on such inadequate proof, poses sub-

stantial due process problems by undermining not only

11

the prior decision of the Third Circuit, but the right of an

accused to have the Government meet its burden be-

yond a reasonable doubt.

In Jackson v. Virginia, 443 U.S. 307 (1979), this

Court analyzed and defined the constitutional require-

ments relating to sufficiency of evidence in the context

of a first degree murder conviction where a federal court

of appeals reinstituted the defendant’s conviction be-

cause there was “some evidence” that the murder had

been premeditated. Referring to In Re Winship, 397

U.S. 358 (1970), this Court held that in a criminal case,

due process requires not merely “some evidence” of

guilt, but proof beyond a reasonable doubt. Anything

less is insufficient:

“In Winship, the Court held for the first time that

the Due Process Clause of the Fourteenth Amend-

ment protects a defendant in a criminal case against

conviction ‘except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime

with which he is charged.’ ” Id. at 315 quoting In Re

Winship, 297 U.S. 358 at 364 (1970).

This Court went on to define that standard as nothing

less than a state of “near certitude” by the factfinder as

to “every element of the offense:”

“The standard of proof beyond a reasonable doubt,

said the (Winship) Court, ‘plays a vital role in the

American scheme of criminal procedure,’ because it

operates to give ‘concrete substance’ to the pre-

sumption of innocence, to insure against unjust

convictions, and to reduce the risk of factual error in

a criminal proceeding. 397 U.S. at 363. At the same

time, by impressing upon the factfinder the need to

reich a state of near certitude of guilt of the ac-

cused, the standard symbolized the significance

that our society attaches to the criminal sanction

and thus to liberty itself. . . In short, Winship pre-

supposes as an essential of the due process guaran-

teed by the Fourteenth Amendment that no person

shall be made to suffer the onus of a criminal con-

12

viction except upon sufficient proof — defined as

evidence necessary to convince a trier of fact be-

yond a reasonable doubt of the existence of every

element of the offense.” Id. at 315-316 (Emphasis

added).

Moreover, the necessity of such proof is not re-

stricted to defendants who are morally blameless; “Un-

der our system of criminal justice even a thief is entitled

to complain that he has been unconstitutionally con-

victed and imprisoned as a burglar.” Jackson v. Virginia,

supra, at 323-324, and on appeal from such a conviction,

it is the duty of the Court of Appeals to “review all the

evidence” in order to determine whether the findings of

the jury were indeed based upon evidence sufficient to

convict. Jackson v. Virginia, supra, at 318, 319.

Petitioner submits that the evidence presented

against him in this case fell woefully short of proving

with “near certitude” Petitioner’s guilt as to “every ele-

ment of the offense.” The prejudice resulting from this

violation of Petitioner's due process rights on the trial

level was repeated on the appellate level when the Court

of Appeals disposed of Petitioner’s sufficiency argument

in a single sentence without reviewing any of the evi-

dence presented, while due process required that the

court “review all the evidence” before rendering judg-

ment. Jackson v. Virginia, 443 U.S. 307, 318-319

(1979).

For the foregoing reasons, it is respectfully submit-

ted that this Court should undertake the task of resolv-

ing the conflict resulting from the decision of the Court

of Appeals below and define the constitutional limits of

sufficiency of evidence in the context of this case.

II. THE COURT OF APPEALS FOR THE THIRD CIR-

CUIT HAS RENDERED AN OPINION IN CON-

FLICT WITH THE DECISIONS OF OTHER FED-

ERAL COURTS OF APPEALS.

Petitioner contended on appeal that the District

Court clearly abused its discretion in refusing to grant

Petitioner’s request, under Federal Rule of Criminal Pro-

13

cedure 14,° for severance, and that Petitioner was se-

verely prejudiced by the “spill-over” effect of over-

whelming evidence presented against his four

co-defendants which had no relevance to Petitioner. The

Court cf Appeals affirmed Petitioner’s conviction, hold-

ing that a disparity in evidence presented against various

defendants in a joint trial does not entitle a defendant to

severance. (App. B).

Petitioner respectfully submits that the holding of

the Court of Appeals is a gross oversimplification of the

law which ignores the circumstances of this case and

conflicts with the decisions of the District of Columbia

and the Second Circuit, both of which have held that a

substantial disparity of evidence in the context of a

multi-defendant trial may in fact require severance

where there is a strong likelihood of prejudicial spill-

over. It is further submitted that the conflict created by

the Court of Appeals for the Third Circuit raises due

process issues of a most serious nature, worthy of the at-

tention of this Court.

As described in the Statement of the Case, supra,

Petitioner was one of five defendants charged in a 17

count indictment involving conspiracy and substantive

offenses in connection with a city-wide scheme by Phila-

delphia police officers to extort over $130,000 from var-

ious businesses in return for protection from “police

harrassment.” Petitioner was named only in the one con-

spiracy count and the Government conceded that nei-

ther its theory of the case nor its evidence demonstrated

that Petitioner was involved in extorting, requesting, or

receiving any money.

During trial, the Government introduced some 28

“victim” witnesses, each testifying as to how he/she was

5. Rule 14 of the Federal Rules of Criminal Procedure provides,

in pertinent part, as follows: “If it appears that a defendant or the

govenment is prejudiced by a joinder of offenses or of defendants in

an indictment or information or by such joinder for trial together,

the court may order an election or separate trials of counts, grant a

severance of defendants or provide whatever other relief justice re-

quires.”

14

harrassed and extorted by Petitioner's co-defendants.

None of the witnesses testified that Petitioner had ever

asked for or otherwise received any money, but the obvi-

ous “spill-over” effect of such evidence was devastating.

In cor nection with this evidence, the Government also

presented scores of incriminating documents, none of

which had anything to do with Petitioner. Finally, Peti-

tioner’s alleged role during the term of this 18 month es-

capade of extortion was minuscule in comparison to the

involvement of his four co-defendants. During the

course of the resulting three week trial, Petitioner only

“popped up” for a brief period at the beginning, when he

apparently “vouched” for informer Hersing to

DeBenedetto, and toward the end, when, in a taped dis-

cussion, co-defendants Smith and DeBendetto told in-

formant Hersing that Petitioner was merely a “social

friend” having nothing to do with their “business.” (T —

2-55, 56).

The Court of Appeals, without considering any of

the above circumstances, was content to hold that a dis-

parity in evidence against c fendants does not re-

quired severance. Petitioner sifbmits, however, that the

matter is not so simple.

This Court long ago articulated its concern over the

dangers inherent in multi-defendant trials where evi-

dence is highly disparate:

“A co-defendant in a conspiracy trial occupies

an uneasy seat. There generally will be evidence of

wrongdoing by somebody. It is difficult for the indi-

vidual to make his own case stand on its own merits

in the minds of the jurors who are ready to believe

that birds of a feather are flocked together.”

Krulewitch v. United States, 336 U.S. 440, concur-

ring Opinion at 454 (1949).

Other Circuits have since recognized these con-

cerns in holding that “a disparate quantum of evidence

against each of two defendants may require severance

under some circumstances,” United States v. Gambrill,

449 F.2d 1148, 1159 (D.C. Cir. 1971) (Emphasis

15

added), particularly where the evidence against co-de-

fendants is “far more damaging” than against the mov-

ing party. McHale v. United States, 398 F.2d 757, 758

(D.C. Cir.), cert. denied, 393 U.S. 985 (1968).

In United States v. Mardian, 546 F.2d 973 (D.C.

Cir. 1976), the District of Columbia Circuit reversed the

defendant's conviction for conspiracy to obstruct justice,

holding that the danger of prejudicial “spill-over” was so

great that the trial court’s failure to grant severance

amounted to an abuse of discretion. The defendant

Mardian was tried along with three other defendants for

conspiracy to impede a Grand Jury investigation into the

infamous Watergate break-in. While the evidence

against Mardian was certainly sufficient to go to the

jury, the court noted that it “was-not as strong as the evi-

dence relating to the other three defendants who were

convicted.” Id. at 976. Unlike the other defendants,

Mardian was named only in the one conspiracy count,

and of the 45 overt acts alleged in that count, only 5 in-

volved Mardian, whose role in the conspiracy ended

soon after its inception.

In reversing the conviction, the court stated that a

substantial disparity of evidence in the context of a

multi-defendant conspiracy trial required severance,

notwithstanding the trial court’s broad discretion, be-

cause the danger of improper “transferance” of guilt is

greatly increased in such circumstances:

“In applying this well established rule, (that the

trial court has broad discretion in deciding sever-

ance motions), however, courts have always kept in

mind the problems inherent in a trial of conspiracy

cases involving numerous defendants. The Su-

preme Court has long recognized that in such cases

‘the liberal rules of evidence and the wide latitude

accorded the prosecution may, and sometimes do,

operate unfairly against an individual defendant.’

Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct.

457, 468, 86 L.Ed. 680 (1942). The ‘dangers of

transference of guilt’ are such that a court shouid

use ‘every safeguard to individualize each defend-

16

ant in his relation to the mass.’ Kotteakos v. United

States, 328 U.S. 750, 774, 773, 66 S.Ct. 1239, 1252,

90 L.Ed. 1557 (1946). See, Blumenthal v. United

States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92

L.Ed. 164 (1947).

Particularly where there is great disparity in

the weight of the evidence, strongly establishing the

guilt of some defendants, the danger persists that

that guilt will improperly ‘rub off on the others.

United States v. Kelly, 349 F.2d 720, 756-759 (2d

Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct.

1467, 16 L.Ed. 2d 544 (1966). In Kelly, the Court of

Appeals for the Second Circuit emphasized that sev-

erance is among the most important safeguards

available to minimize the risk of prejudice, and it or-

dered a new separate trial for the one alleged co-

conspirator who was disadvantaged by the dispro-

portion in the evidence. Id. at 756. See, United

States v. Donaway, 447 F.2d 940, 943 (9th Cir.

1971). This court has often expressed its accept-

ance of the rule announced in Kelly, requiring sev-

erance when the evidence against one or more de-

fendants is ‘far more damaging’ than the evidence

against the moving party.” (Emphasis added). Id.

at 977.

The Government in the present case attempted to

distinguish Mardian on the ground that one of the fac-

tors leading to the court’s decision therein was the ab-

sence of Mardian’s chosen counsel at trial due to illness.

(App. D). Petitioner submits that while this incident

strengthened Mardian’s argument, the court’s powerful

language, supra, leaves no doubt of its decision that sev-

erance must be granted “when the evidence against one

or more defendants is far more damaging than the evi-

dence against the moving party.” United States v.

Mardian, supra, at 977.

In the present case, Petitioner stands in the same

place as did the defendant in Mardian. As in that case,

Petitioner herein was named in only one count of a

multi-count indictment. His role in relation to the activi-

17

ties of his four co-defendants was extremely limited, and

a great majority of the Government’s evidence centered

upon events which had nothing whatever to do with Pe-

titioner. Under these circumstances, Petitioner suffered

under the same impediments which caused the

Mardian court to reverse the conviction.

The District of Columbia Circuit was not the only

one to perceive and consider the prejudice inherent in

circumstances such as the one before this Court. In ad-

dition to Mardian, and the cases cited therein, the Sec-

ond Circuit, in United States v. Branker, 395 F.2d 881

(2d Cir. 1968), cert. denied in Lacey v. United States,

393 U.S. 1029 (1969), recognized that:

“It is obvious that as the number of counts is

increased, the record becomes more complex and it

is more difficult for a juror to keep the various

charges against the several defendants and the tes-

timony as to each of them separate in his mind... .

This kind of prejudice is particularly injuriows

to defendants who are charged in only a few of the

many counts, who are involved in only a small pro-

portion of the evidence, and who are linked with

only one or two of their co-defendants. The jury is

subjected to weeks of trial dealing with dozens of

incidents of criminal miscunduct which do not in-

volve these defendants in any way. As trial days go

by, ‘the mounting proof of the guilt of one is likely to

affect the other.’ ” (Emphasis added; citations omit-

ted). Id. at 887-888.

This is precisely what occurred in the case at bar,

and the District Court’s attempt to compartmentalize the

evidence at the end of trial came too late to undo the

damage resulting from prejudicial spill-over. As this

Court stated in Blumenthal v. United States, 332 U.S.

539, 559 (1947):

“Perhaps even at best the safeguards provided

by clear rulings on admissibility, limitation of the

bearing of evidence against particular individuals,

18

and adequate instruction, are insufficient to ward

off the danger entirely.”

In view of the foregoing, Petitioner submits that the

Opinion of the Third Circuit Court of Appeals is in con-

flict with the decisions of the District of Columbia and

Second Circuits, and with the concerns voiced by this

Court in Blumenthal and Krulewitch, supra, to the ex-

tent that it fails to recognize that a disparate quantum of

evidence in a multi-defendant trial may be, and in this

case was, sufficient to require severance. The Third Cir-

cuit’s present stance in requiring something more, is a

blanket denial of Due Process deserving the close scru-

tiny of this Honorable Court.

19

CONCLUSION

For the foregoing reasons, Petitioner respectfully re-

guests that a Writ of Certiorari should be issued to re-

view the decision of the United States Court of Appeals

for the Third Circuit in this case.

Respectfully submitted,

JEFFREY M. MILLER, ESQUIRE

Attorney for Petitioner

Abe R. Schwartz

APPENDIX

United States o

DEFENDANT

} denaten we. United States Distriet Go

-—-_— —— a

EASTE DISTRICT OF PENNSYLVANIA

ULt for

The ate: sail baip thar aie aussie aan’ = de Gaby GR cae us. ais aoke ale Saw: <esl stie sites: tame lens uals Gane a as, sk TO, ee ee

ee ABE R. SCH _ 5g ETAT a DOCKET NO. B— | 83-66-5

PUBOMSMW AME PRE TON AE OUEST OEE MT ORME anaes

COUNSEL

PLEA

FINDING &

JUOGMENT

In the presence of the attorney for the government

the defendant appeared in person on this date Wiliiam B 2

LJ WITHOUT COUNSEL However the court advised defendant of right to counsel and asked whether defendant desired to

. = =

have counsel appointed by the court and the defendant thereupon waived assistance of counsel.

LX )WITHCOUNSEL t__u—__ _ __ — Jeffrey Miller,Esq.

(Name of counsel)

LJ GUILTY, and the court being satisfied that L___j NOLO CONTENDERE,

there is a factual basis for the pica,

LJ NOT GUILTY. Defendant is discharged

There being a finding/verdict of

LX GUILTY.

Defendant has been convicted as charged of the offense(s) of

‘ Conspiracy to violate the Hobbs act. Ct.1l

==

- °)

SENTENCE

OR

PROBATION

ORDER

SPECIAL

CORDITIONS

OF

PROGATION

ADDITIONAL

CONDITIONS

OF

PROBATION

> Dollars.)

probation for a violation occurring during the probation period.

COMMITMENT

RECOMMEN-

DATION

ici Jueer , / } 4

|___j NOT GUILTY

I-V

The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary

was shown, of appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant is

hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of four (4)

years. The defendant is to pay a fine in the amount of $10,000.00 (Ten Thousand

in addition to the special conditions of probation imposed above, it is hereby ordered that the general conditions of probation set out on the

reverse side of this judgment be imposed. The Court may change the conditions of probatior, reduce or extend the period of probation, and at

any “ome during the probation period or within a maximum probation period of five years permitted by law, may issue a warrant and revoke

>” The court orders commitment to the custody of the Attorney Gencral and recommends,

‘4 =

T Date [pan< & 7' 7,

tt is ordered that the Clerk deliver

a certified copy of this judgment

and commitment to the U.S. Mar-

sha! or other qualified officer.

V XIGNAddVv

A-2

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1609

UNITED STATES OF AMFRICA

v.

SCHWARTZ, ABE R.

Abe R. Schwartz, Appellant

Appeal from the United States District Court for the

Eastern District of Pennsylvania

(D.C. Crim. No. 83-00066-05)

District Judge: John P. Fullam

Submitted Under Third Circuit 12(6)

March 9, 1984

Before: ALDISERT and HIGGINBOTHAM, Circuit

Judges, and PECK,” Circuit Judge.

(Filed March 12, 1984)

MEMORANDUM OPINION OF THE COURT

ALDISERT, Circuit Judge.

Appellant appeals from a sentence imposed on a

conviction of guilty of one count of conspiracy to violate

the Hobbs Act, 18 U.S.C. §1951. Appellant, a Philadel-

phia police detective for some 41 years, was indicted

with other police officers. It was alleged that appellant

and his four co-defendant police officers conspired to

use their official positions to extort payoffs from illegal

businesses in return for allowing the businesses to oper-

ate free from police harassment.

“Honorable John W. Peck, of the United States Court of Ap-

peals for the Sixth Circuit, sitting by designation.

A-3

His appeal presents four questions for review. He

first argues that there was insufficient evidence to sup-

port his conviction. We are satisfied that the evidence

was sufficient. See Brief for Appellee at 15-19.

Appellant next contends that the court abused its

discretion by not granting his motion for severance. It is

a settled precept iri this court that granting a severance

rests within the discretion of the trial court and requires

consideration of the likelihood of a co-defendant testify-

ing, the degree to which such testimony would be excul-

patory, the degree to which the testifying co-defendant

could be impeached, and judicial economy. United

States v. Provenzano, 688 F.2d 194, 199 (3d Cir.), cert.

denied, U.S. _._ (51 U.S.L.W. 3442, Dec. 6,

1982). The general rule in a conspiracy case is that the

defendants indicted together should be tried together so

that all the facts of the conspiracy may be developed.

United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir.

1982), cert. denied, __ US. (51 U.S.L.W. 3757,

Apr. 18, 1983). This court will overturn a denial of a mo-

tion for severance only upon a showing of prejudice.

United States v. Somers, 496 F.2d 723 (3d Cir. ), cert. de-

nied, 419 U.S. 832 (1974). Initially, there is a question

whether this issue was properly preserved at trial. There

was an early motion for severance but it was agreed that

the court need not rule on it until receiving the govern-

ment’s trial memorandum and a separate memorandum

providing the independent evidence of appellant's par-

ticipation. His counsel did not request a ruling from the

district court on the issue and there does persist a ques-

tion of whether he abandoned the motion. Nevertheless,

we will consider the issue as one that was properly pre-

served. We are persuaded that there was no abuse of dis-

cretion and are confident that the jury was able to sepa-

rate the evidence introduced against the various

co-defendants. A defendant is not entitled to a severance

merely because evidence against a co-defendant is more

damaging evidence than against him. United States v.

Somers, supra.

A-4

Appellant contends that the trial court erred in ad-

mitting out-of-court statements of police officer George

Woods. He argues that this was inadmissible hearsay

and makes a vague reference that the testimony violated

the confrontation clause of the sixth amendment. In ap-

pellant’s brief, reference is made to six times when the

confrontation was raised at trial. We have examined

those pages and find that none of the objections make a

specific reference to the confrontation clause. It can be

argued that the testimony was admissible under Rule

801(d)(2)(8) of the Federal Rules of Evidence, State-

ment of Co-conspirator, yet we need not meet this chal-

lenge as well. Because the statements of Officer Woods

did not seek to implicate the appellant in the specific

conspiracy with which he was charged, we find no pre}-

udice and therefore no trial error.

Finally, appellant argues that the court abused its

discretion in considering the extent of Schwartz's assets

at sentencing. The district court requested defense

counsel to comment on the assets accumulated by the

defendant, amounting to approximately $300,000 in

current value. We find no error here because the inquiry

was relevant on the question of whether a fine should be

assessed. Moreover, the district court carefully stated his

recognition that any sentence based on crimes not

charged or proven would be improper and that the sen-

tence imposed was only “for the crime which has been

charged and proven.” App. at 121a.

We have carefully considered all the contentions

presented by the appellant.

Accordingly, the judgment of the district court will

be affirmed in all respects.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

A-5

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED anpber< OF AMERICA : CRIMINAL

JOHN DeBENEDETTO, et al. NO. 83-66

MEMORANDUM AND ORDER

FULLAM, J. July 8, 1983

The defendant John DeBenedetto was an inspector

in the Philadelphia Police Department, and the officer in

charge of the Central Detective Division. The defendant

John Smith was a lieutenant in the Philadelphia Police

Department, and DeBenedetto’s second-in-command.

The defendants Vincent McBride and Lawrence Molloy

were Philadelphia police officers assigned to the “inspec-

tor’s squad” in the Central Police Division. The Defend-

ant, former detective Abe Schwartz, was not assigned to

the Central Detective Division, but rather was in charge

of the program for clearing persons for issuance of gun

permits, throughout the City of Philadelphia. He was,

however, a long-time friend of both DeBenedetto and

Smith.

All five of these officers were indicted, and have

been convicted by a jury, on charges of extortion and

conspiracy, for carrying out a systematic program of re-

ceiving large financial payments in exchange for

permitting illegal prostitution and gambling. The money

was paid by proprietors of massage parlors which oper-

ated as fronts for prostitution, and by bar-owners or

vending-machine companies (in order to operate after-

hours, and/or to permit their customers to use video-

poker machines for gambling).

The evidence at trial clearly established that all of

the defendants except Schwartz actively participated in

the extortion scheme, received cash payoffs, etc. The

contention of these defendants that the evidence was in-

sufficient to sustain the verdict is absurd.

A-6

With respect to the Defendant Schartz, it is reason-

ably clear that he did not directly participate in the

scheme, and did not receive any of the money. But the

evidence established that Schwartz was fully aware of

the extortion scheme and played an active role in help-

ing it to succeed. For example, he advised one of the

massage parlor operators (the government's informer,

Hersing, as to how best to carry on his prostitution enter-

prise without police interference; introduced Hersing to

the Defendant DeBenedetto to initiate the payoff ar-

rangements, and vouched for Hersing’s reliability in that

connection; and acted as intermediary between Hersing

and DeBenedetto and Smith, when Hersing missed

some payments. For his trouble, Schwartz received from

Hersing a gift of a Betamax video recorder, and the sex-

ual services of one of Hersing’s prostitutes. The Betamax

may have been merely a gesture of friendship, unrelated

to the extortion scheme, but the sexual favors plainly

were a form of payoff. Schwartz was charged only with

conspiracy; the evidence amply supports his conviction

on that count.

Various defendants argue that their pretrial motions

for severance should have been granted, and that they

were unfairly prejudiced by being tried jointly with the

other defendants. It is true that there was much more

direct evidence against certain defendants (e.g.,

DeBenedetto, Smith and Schwartz) than against others

(particularly McBride and Molloy). But virtually all of

the evidence which was received would have been rel-

evant and admissible at the separate trials of each of the

defendants, including Molloy and McBride. The joint

trial was therefore proper, and none of the defendants

was prejudiced as a result.

In my view, the co-conspirator’s statements were

properly admitted in evidence. Moreover, to the best of

my recollection, no hearsay evidence of co-conspirator

statements was received (i.e., no such statement was re-

ceived as proof of the truth of the facts contained in the

statement).

A-7

The only other issues meriting brief discussion re-

late to the court's pretrial rulings on suppression of evi-

dence. The grand jury which was considering this case

issued a “forthwith” subpoena duces tecum, directed to

the Philadelphia Police Commissioner, requiring pro-

duction before the grand jury of the contents of the

desks and lockers of certain named police officers, in-

cluding some of these defendants. The police commis-

sioner and his designated representatives fully cooper-

ated with the grand jury, the FBI, and the U. S.

Attorney’s office in complying with this subpoena. In a

pretrial ruling, I concluded that the net effect of this op-

eration was a warrantless search and seizure, for pur-

poses of Fourth Amendment analysis.

Evidence obtained as a result of the subpoena proc-

ess included (1) a list of payoffs, obtained in search of

the locker assigned to the defendant Smith; and (2) the

contents of DeBenedetto’s desk, some of which repre-

sented Police Department records, and some of which

were DeBenedetto’s personal papers. I ruled pre-trial

that only Smith and DeBenedetto had standing to seek

suppression of these materials; that Smith had no legiti-

mate expectation of privacy with respect to the contents

of his locker, in view of police regulations governing the

permissible contents of lockers and expressly authoriz-

ing inspection at any time and precluding exclusive con-

trol over access to the lockers; and, in any event, that

both Smith and DeBenedetto had consented to the

search. I further expressed the view, however, that the

Government was on much firmer ground with respect to

the document found in Smith's locker than it was with

respect to the contents of DeBenedetto’s desk; and I ven-

ture the suggestion that the Government might do well

to weigh carefully the need for his evidence at trial

against the risk of appellate reversal.

As it turned out, only the document retrieved from

Smith’s locker was introduced in evidence at trial. | ad-

here to my pretrial ruling that the motion to suppress

this evidence was properly denied. It should be noted,

however, that its significance was quite minimal, in view

A-8

of the overwhelming nature of the Government’s other

evidence.

There neither is, nor could be, any serious conten-

tion that any of the Government’s evidence flowed from,

and might have been painted by, the documents ob-

tained from DeBenedetto’s desk (if, contrary to this

Court’s earlier ruling, that seizure was unlawful). Con-

trary to the suggestion of defense counsel, I have no oc-

casion in this case to consider the possibility that such

taint might infect other pending or prospective indict-

ments.

I have carefully considered all of the arguments

raised in the defendants’ post-trial motions. I have con-

cluded that the defendants were fairly tried, and prop-

erly convicted. All post-Trial motions will therefore be

denied.

JOHN P. FULLAM, J.

A-9

APPENDIX D

ARGUMENT

I, THERE WAS SUFFICIENT EVIDENCE TO SUP-

PORT SCHWARTZ’ CONVICTION FOR CONSPIR-

ACY TO VIOLATE THE HOBBS ACT.

Schwartz concedes that the evidence preseiited by

the government proved that there was a conspiracy

among his four co-defendants to collect pay-offs in re-

turn for protection from police interference in unlawful

activities (Brief at 7-8). On this appeal, however,

Schwartz contends that there was insufficient evidence

linking him to the conspiracy.

In evaluating Schwartz’ claim that there was insuf-

ficient evidence to support the jury’s verdict, this Court

must view the evidence and all the reasonable infer-

ences that may be drawn therefrom in a light most favor-

able to government, and determine whether there was

substantial evidence to support a finding of guilty be-

yond a reasonable doubt. Glasser v. United States, 315

U.S. 60, 80 (1942); United States v. Sturm, 671 F.2d

749, 751 (3d Cir.), cert. denied, 51 U.S.L.W. 3255

(1982). Once the government has proven the existence

of a conspiracy, as conceded by Schwartz, slight evi-

dence is sufficient to connect a defendant with it. United

States v. Provenzano, 620 F.2d 985 (3d Cir.), cert. de-

nied, 449 U.S. 899 (1980); United States v. Moraites,

456 F.2d 435 (3d Cir.), 409 U.S. 891 (1972); United

States v. De Cavalcante, 440 F.2d 1264, 1273 (3d Cir.

1971). However, the government's evidence must be

sufficient to show, at minimum, that the defendant had

knowledge of the conspiracy’s illicit purpo.e and per-

formed acts in furtherance of the conspiracy. United

States v. Provenzano, supra; United States v. Klein, 515

F.2d 751 (3d Cir. 1975). The evidence presented in this

case was more than adequa!e to show, beyond a reason-

able doubt, that Schwartz was aware of the illicit pur-

pose of the extortion conspiracy and that he acted in fur-

therance thereof.

A-10

Schwartz was well aware of the fact that Hersing’s

studio was, in fact, a front for a prostitution operation. In

fact, Schwartz received “sexual favors,” or prostitutes,

from Hersing (App. 7la-72a). Schwartz also knew that

Hersing was making pay-offs to Woods for protection

from arrests at the studio (Supp. App. 89a-91la). Further-

more, Schwartz was instrumental in bringing Hersing

and DeBenedetto together so that Hersing could make

his protection payments to the “right” person. Knowing

that Hersing was dissatisfied because the arrests contin-

ued, Schwartz advised Hersing to speak with the “head

man,” DeBenedetto, and agreed to make the arrange-

ments (Supp. App. 92a). After speaking with Schwartz,

Hersing received a message to call DeBenedetto (Supp.

App. 95a). Hersing subsequently arranged to make his

payments to DeBenedetto through Smith, rather than

Woods (Supp. App. 105a-106a). Prior to this meeting,

Schwartz had already advised DeBenedetto that Hersing

was making pay-offs to Woods (Supp. App. 104a).

Schwartz had also recommended and vouched for

Hersing to DeBenedetto (Supp. App. 103a). DeBene-

detto would not have conducted any business with

Hersing but for the recommendations that Hersing re-

ceived (Supp. App. 160a). After Hersing made the nec-

essary arrangements with DeBenedetto, Schwartz con-

tinued to advise Hersing on how to do business with

DeBenedetto, acted as an intermediary between Hersing

and DeBenedetto when problems developed between

them and relayed information to Hersing from DeBene-

detto. Thus, the evidence presented to the jury and the

reasonable inferences therefrom amply demonstrated

that Schwartz was both aware of the on-going conspir-

acy and its purpose, and participated in the conspiracy

by engaging in efforts to bring Hersing and DeBenedetto

together and by doing his best to ensure that the scheme

ran smoothly, at least as to Hersing.

Schwartz argues that he received nothing “of value”

from the conspiracy (Brief at 15). The government is not

required to prove, as an element of the offense of con-

spiracy to violate the Hobbs Act, that Schwartz received

A-11

money or something of value as a result of his participa-

tion in the conspiracy. There was, however, sufficient

evidence to infer that Schwartz received “sexual favors”

from Hersing during the conspiracy (Supp. App. 92a-

93a). As stated by Schwartz to Hersing, sex was all he

really wanted for his assistance (Supp. App. 92a).

Finally, Schwartz argues that the fact that on

March 4, 1982, DeBenedetto told Hersing that Schwartz

was not involved in their business demonstrates that

Schwartz was not, in fact, involved in the conspiracy

(Brief at 17). However, the March 4th meeting was a

session at which DeBenedetto and Smith browbeated

Hersing for missing payments and for the unsatisfactory

way that Hersing had conducted business with them.

DeBenedetto was particularly disturbed about Hersing’s

use of names (Supp. App. 160a). Hersing brought up

Schwartz’ name when DeBenedetto and Smith were

criticizing Hersing for moving the studio and making

$30,000.00 worth of renovations without telling anyone

(Supp. App. 162a). The fact that DeBenedetto denied

Schwartz’ involvement at that time may have been a re-

sult of DeBenedetto’s dissatisfaction with Hersing for

bringing up Schwartz’ name. Moreover, even if DeBene-

detto’s comment is taken at face value, Schwartz’ in-

volvement in the conspiracy was well supported by the

evidence presented by the government.

Schwartz’ reliance on United States v. Moses, 220

F.2d 166 (3d Cir. 1955), a case in which the defendant

was charged with aiding and abetting in the sale of nar-

cotics, is misplaced. The Court in Moses held that the

defendant’s introduction of two undercover federal

agents to a supplier who was on his way over to the

defendant's home and her vouching for the prospective

buyers to the supplier was insufficient to support convic-

tion for aiding and abetting the seller. This holding was

based, in part, on the fact that the relevant statutory law

did not prohibit general participation in a drug transac-

tion and the fact that the defendant was charged with

aiding and abetting in the sale, and not the purchase of

drugs. Id. at 168. Assuming, arguendo, that the analysis

A-12

in Moses is relevant to a conspiracy case, unlike the situ-

ation in Moses, Schwartz’ participation far exceeded a

simple introduction and vouching for Hersing. In

United States v. Atkins, 473 F.2d 308 (8th Cir.), cert.

denied, 412 U.S. 931 (1973), the Eighth Circuit distin-

guished the facts in Moses from the facts in Atkins. In

Atkins, the appellant had acted affirmatively to bring the

buyer and seller together and had remained interested in

the purchase after the sale was consummated. Although

the facts in Moses are quite different from those in the

instant case, that opinion and the Atkins opinion reveal

that the Moses analysis is inapplicable to the facts pre-

sented in this case. Here, Schwartz engaged in affirma-

tive conduct to facilitate the payment of money by

Hersing to DeBenedetto and remained interested and

involved in the relationship after the deal was made.