Petition for Writ of Certiorari — Schepp v. United States
Supreme Court brief1985
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IN THE
Supreme Court of the United States
OcTOBER TERM, 1984
MILTON RUSSELL SCHEPP,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
GEORGE J. MILLER
1015 Locust Street
St. Louis, Missouri 63101
(314) 421-6310
J. MARTIN HADICAN
Joyce Y. MACDONALD
Law Office OF J. MARTIN HADICAN, INC.
225 South Meramec, Suite 832
St. Louis, Missouri 63105
(314) 863-0050
Counsel for Petitioner
St Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
QUESTIONS PRESENTED FOR REVIEW
I.
Did the trial court err in overruling Petitioner’s Motion for a
| Judgment of Acquittal at the conclusion of the Government’s
case and at the conclusion of all the evidence as to Counts I and
III of the Indictment wherein Petitioner was charged with con-
spiracy to destroy, by»means of an explosive, an automobile be-
ing used in an activity affecting interstate commerce, in viola-
tion of 18 U.S.C. §§371 and 844(i), and damaging an
automobile being used in an activity affecting interstate com-
merce, in violation of 18 U.S.C. §§2 and 844(i), respectiveiy, for
the reason that the evidence introduced by the Government was
insufficient to establish that the vehicle alleged to have been
damaged was being used in an activity affecting interstate com-
merce?
Il.
Did the trial court err in overruling the objections of Peti-
tioner and in denying the requests of Petitioner that the jury be
instructed to disregard the testimony, that the testimony be
stricken and that a mistrial be declared when, during the cross-
examination of Petitioner the court permitted the Government
to inquire of Petitioner whether it was true that the brother-in-
law of Petitioner left town in 1964 as a result of the murder of
Richard Leisure and whether, at that time, the brother-in-law of
Petitioner worked for Jimmy Michaels, Sr., for the reasons that
the same inquiry was not relevant or material to any of the
issues in the case and that the same inquiry was highly pre-
judicial as it was designed to establish the guilt of Petitioner,
who was charged with conspiring with Jimmy Michaels, III, to
bomb Richard Leisure’s cousin, by showing that he associated
with a person alleged to have committed a crime similar to the
one for which Petitioner was on trial?
Ill.
Did the trial court err in overruling the objections of Peti-
tioner to evidence of certain out-of-court statements of alleged
coconspirators of Petitioner for the reason that said statements
were hearsay and were not admissible under Rule 801(d)(2)(E)
of the Federal Rules of Evidence since the same statements were
made after the object of the conspiracy had been accomplished
and, thus, were not made during the course of and in fur-
therance of the conspiracy?
IV
Did the trial court commit plain error when it permitted the
Government, during its closing argument:
A.
To characterize Petitioner as a ‘‘hoodlum’’ and a “‘criminal’”’
for the reasons that the Petitioner had not placed his character
in issue, that the characterizations were not supported by the
evidence, and that the characterizations were highly inflam-
matory and prejudicial and deprived Petitioner of his right to a
fair trial; and
B.
To make certain statements set out in full in the Statement Of
The Case for the reasons that the statements were not supported
by the evidence, the statements implied the existence of evidence
in favor of the Government which had not been introduced and
the making of the statements constituted prosecutorial miscon-
duct which deprived Petitioner of his right to a fair trial?
— ill —
TABLE OF CONTENTS
Page
SE TE OR ee ae ae l
EE ree eee ee l
Constitutional Provisions and Statutes Involved....... 2
Ee eee Tree eee eee eee 3
Evidence Material To Question! .................... 4
Evidence Material To Question II ................... 5
Evidence Material To Question II] .................. 7
Evidence Material To Question IV-A ................ 8
Evidence Material To Question IV-B ................ 9
EE ROT Sa ee 1]
Appendix A - Opinion of the U. S. Court of Appeals ... A-l
Appendix B - Order denying Petition for Rehearing .... A-10
TABLE OF AUTHORITIES
Cases:
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 78
ks Gs ee ehh eek ee eK 22, 24, 26
Hall v. United States, 419 F.2d 582 (Sth Cir. 1969)... .22, 24, 26
Harrington v. United States, 267 F. 97 (8th Cir. 1920) .. 20
Krulewitch v. United States, 336 U.S. 440, 93 L.Ed. 790
ae us alba we aw eb nb as 19,
a Tons
United States v. Andrini, 685 F.2d 1094 (9th Cir. 1982) .
United States v. Barker, 553 F.2d 1013 (6th Cir. 1977) 22, 23,
United States v. Barton, 647 F.2d 224 (2nd Cir. 1981) ..
United States v. Bell, 573 F.2d 1040 (8th Cir. 1978).....
United States v. Bigeleisen, 625 F.2d 203 (8th Cir. 1980) 22,
United States v. Bledsoe, 531 F.2d 888 (8th Cir. 1976) .. 22,
United States v. Corbo, 555 F.2d 1279 (Sth Cir. 1977) ..
United States v. Crawford, 438 F.2d 441 (8th Cir. 1971) 17,
United States v. Giordano, 693 F.2d 245 (2nd Cir. 1982)
United States v. Grossman, 608 F.2d 534 (4th Cir. 1979)
United States v. Keen, 508 F.2d 986 (9th Cir. 1974).....
United States v. Labarbera, 581 F.2d 107 (Sth Cir. 1978) 16,
United States v. Mennuti, 487 F.Supp. 539 (E.D.N.Y.
1980), aff’d 639 F.2d 107 (2nd Cir. 1981) ....... 11, 13,
United States v. Michaels, 726 F.2d 1307 (8th Cir. 1984),
cert. denied United States Supreme Court Cause
Fs EE IE ick dc swe vueswscnddace kuek es
United States v. Monholland, 607 F.2d 1311 (10th Cir.
ah MEER EEE REE PETE Pee RCE 11, 12, 13, 14,
United States v. Morris, 568 F.2d 396 (Sth Cir. 1978) ... 22,
United States v. Nashawaty, 571 F.2d 71 (1st Cir. 1978).
United States v. Ochoa, 609 F.2d 198 (Sth Cir. 1980) ...
United States v. Romo, 669 F.2d 285 (5th Cir. 1982).... 17,
United States v. Schwanke, 598 F.2d 575 (10th Cir.
PP c<h oh ca eel see eee class
15
24
15
20
25
25
15
19
15
15
15
18
ee
16
16
26
15
16
18
15
United States v. Singleterry, 646 F.2d 1014 (Sth Cir.
oo re er rene errr Fe tere eee 16-17, 18
United States v. Sweet, 548 F.2d 198 (7th Cir. 1977),
cert. denied 430 U.S. 969, 97 S.Ct. 1653, 52
Re gf se: rr rere ere rere re 15
Statutes:
Section 844(i), Title 28, United States Code ...... 11, 12, 13, 16
Federal Rules of Evidence, Rule 404 ................. 18
Federal Rules of Evidence, Rule 611(b)............... 17
Federal Rules of Evidence, Rule 801(d)(2)(E).......... 19, 21
Constitutional Provisions:
es Lk a sew oo ee we ee ew eee 2
Miscellaneous Authorities:
H.R. Rep. No. 1549, 91st Congress, 2d Sess. (1970),
reprinted in [1970] U.S. Code Cong. & Ad. News
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1984
MILTON RUSSELL SCHEPP,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CiRCUIT
OPINIONS DELIVERED IN COURTS BELOW
The only opinion delivered by a court below in the instant
matter is the opinion of the United States Court of Appeals for
the Eighth Circuit filed October 11, 1984, in the cause of action
styled United States of America v. Milton Russell Schepp,
Cause No. 83-2244. The same opinion has not been published.
JURISDICTIONAL STATEMENT
On October 11, 1984, the United States Court of Appeals for
the Eighth Circuit filed its opinion affirming the judgment of
the United States District Court for the Eastern District of
Missouri in the instant matter.
ho
On November 8, 1984, the United States Court of Appeals
for the Eighth Circuit denied Petitioner’s Motions for Rehear-
ing and for Rehearing En Banc.
No order has been obtained granting an extension of time
within which to petition for certiorari.
The statu’ >ry provision which confers on this Court review by
writ of certiorari the judgment of the United States Court of
Appeals for the Eighth Circuit in the instant matter is 28 U.S.C.
§1254(1).
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
The following constitutional provisions, statutes and rules are
involved in the instant matter:
The first clause of the Sixth Amendment to the United States
Constitution, which reads:
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously ascer-
tained by law...”’
18 U.S.C. §844(i), which reads:
(i) Whoever maliciously damages or destroys, or at-
tempts to damage or destroy, by means of fire or an ex-
plosive, any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce shail be
imprisoned for not more than ten years or fined not more
than $10,000.00, or both; and if personal injury results
shall be imprisoned for not more than twenty years or fin-
ed not more than $20,000.00, or both; and if death results
Shall also be subject to imprisonment for any term of
— 2
years, or to the death penalty or to life imprisonment as
provided in section 34 of this ttle.
Rule 611(b) of the Federal Rules of Evidence, which reads:
Cross-examination should be limited to the subject mat-
ter of the direct examination and matters aftecting the
credibility of the witness. The court may, in the exercise of
discretion, permit inquiry into additional matters as if on
direct examination.
Rule 801(d)(2)(E) of the Federal Rules of Evidence, which
reads:
‘‘A statement is not hearsay if...[t]he statement is of-
fered against a party and is...a statement by a
coconspirator of a party during the course and in fur-
therance of the conspiracy.”’
STATEMENT OF THE CASE
The instant cause of action was tried before a jury on an In-
dictment containing three Counts filed in the United States
District Court for the Eastern District of Missouri, Eastern
Division. The first Count of the Indictment charged that, bet-
ween September of 1980 and August 12, 1981, Petitioner and
James Anthony Michaels, III, together with others known and
unknown, conspired to destroy, by means of an explosive, an
automobile being used by John Paul Leisure in the business of
Local 42 of the Laborers International Union of North
America, an activity affecting interstate commerce, in violation
of Section 371 and 844(i) of Title 18 of the United States Code.
The second Count of the Indictment charged that Petitioner and
James Anthony Michaels, III, made a destructive device
without filing the proper form with the Secretary of the
Treasury, in violation of Section 5822 of Title 26 of the United
States Code. The third Count charged that, on August 11,
1981, Petitioner and James Anthony Michaels, III, damaged an
automobile being used by John Paul Leisure in the business of
ici
——
Local 42 of the Laborers International Union of North
America, an activity affecting interstate commerce, in violation
of Sections 2 and 844(i), Title 18, United States Code. The Jury
“ound Petitioner guilty on each Count. Petitioner was sentenc-
ed to terms of imprisonment of five (5) years on Count I, of ten
(10) years on Count II and of ten (10) years on Count III, said
sentences to run concurrently.
Jurisdiction of the District Court was invoked by the Govern-
ment under Sections 2, 371 and 844 of Title 18 of the United
States Code and Sections 582, 5861(f) and 5871 of Title 26 of the
United States Code.
The evidence at trial material to the questions presented was
as follows.
EVIDENCE MATERIAL TO QUESTION I
On August 11, 1981, Paul Leisure was injured (T.1-40) when
a bomb exploded (T.3-120) in his automobile (T.2-36,37), which
was parked (T.1-34) on the street in front of his home (T.2-37)
in St. Louis, Missouri. The only evidence adduced by the
Government to establish that Leisure’s automobile was being
used in an activity affecting interstate commerce was the
testimony of Irene Jones. According to the same testimony,
Leisure is a field organizer in St. Louis, Missouri, for Local 42
of the Laborers International Union. Among the duties of a
Field Organizer are the solicitation of new members and the col-
lection of initiation fees and dues from members at job sites.
Leisure receives an expense allowance of Two Hundred Dollars
($200.00) per month for the use of his automobile. No
documentary evidence was produced showing Leisure to be
employed by Local 42. Irene Jones, an employee of Local 42,
mails various records, reports and checks of Local 42 to the In-
ternational Union in Washington, D.C. (T.2-45).
After the bombing, a briefcase was found on the ground near
Leisure’s car. (T.2-22). The briefcase contained membership
=
application forms for Local 42, dues check-off forms and a
booklet outlining the contracts between Laborers Union Locals
and various industries. (T.2-22-24,2-45-46).
EVIDENCE MATERIAL TO QUESTION I
In April of 1981, William Albright, a friend of Jimmy
Michaels, III, upon the request of Michaels, III, rented an
apartment for Michaels, III. (1.2-99,113-118).
The Government sought to establish that the apartment
rented by Albright for Michaels, III, was used to manufacture
the bomb which damaged the Leisure automobile.
(T.3-7,8,12,14,17-23,29,54-58,66,118,145-148). A fingerprint of
Michaels, Il, was found inside of the apartment (T.3-140), and
fingerprints of Michaels, II, and Petitioner were found on
magazines recovered from a trash bag containing mail address-
ed to the Michacls apartment (T.3-146-148). Automobiles
registered to Petitioner (T.2-73,104), Robert D. Peters
(T.2-95,3-113), John Michaels, the brother of Michaels, III,
(T.1-20,2-77) and a relative of Jack Issa who allowed Jack Issa
to use his automobile (T.3-3) were seen at various times in the
parking lot of the apartment complex in which was located the
apartment rented by Michaels, ‘II.
The bomb which damaged the Leisure automobile was
remotely activated (T.3-120). On the morning of August 11,
1981, one street over from the site of the Leisure incident, a resi-
dent noticed two men sitting in a car in front of his house.
(T.2-52,57). The men were identified as Jack Issa and George
Faheen, a cousin of Jimmy Michaels, III. (17.2-43). Norm
Stiebel was called as a witness by the Government and testified
that he purchased two cars for Petitioner (T.3-72-85) - the car in
which the two men identified as Issa and Faheen were seen sit-
ting (T.2-52,57) and a car which was later found by the FBI in a
storage garage which had been rented for John Michaels by
William Albright (T.3-114). Additionally, both cars were seen
in the parking lot of the apartment rented by Michaels, III.
(T.2-72,75,77,87,89).
miu
Peiitioner testified at his trial. During direct examination, he
testified as to his relationship, if any, with each of the in-
dividuals the Government had sought to establish were involved
in the bombing of Leisure’s automobile. Petitioner testified
that his first wife was Mary Peters. He was married to her in
1959 and they were divorced in 1968. (T.4-38). The couple had
two children with whom Petitioner has remained very close.
(T.4-16,38). Norm Peters, George Peters, Ollie Peters and Bob
Peters are brothers of Mary Peters. Petitioner last saw Norm
Peters in 1964 and last saw George and Ollie Peters approx-
imately fifteen years ago at his daughter’s First Communion.
(T.4-31,32). Petitioner maintained some contact with Bob
Peters after his divorce from Mary and had gone with him to the
apartment at 2706 Arnold Tenbrook on three or four occasions
during the summer of 1981 to watch a ballgame on television.
(T.4-33,25).
The Peters family is friends with the Michaels family
(T.4-50), but Petitioner had never seen Jimmy Michaels, Sr.,
Jimmy Michaels, Jr. nor Michaels, III, socially. He did know
of them through his police work. He had never talked to
Michaels, III, until he met him while confined with him after
they both had surrendered in the instant matter. (T.4-27,28,29).
Petitioner knows of John Michaels through the publicity sur-
rounding the Leisure incident. (T.4-31).
Petitioner saw George Faheen, a cousin of Jimmy Michaels,
III, one time in the early sixties at the home of Mary Peters’
parents. (T.4-30). Petitioner knew of Jack Issa through his
former brother-in-law and last saw him in 1964. (T.4-30,31).
Petitioner met Norm Stiebel approximately fifteen years ago
when he operated a service station on the beat covered by Peti-
tioner while Petitioner was a patrolman. (T.4-34). When Peti-
tioner became Chief of Police of the City of St. George, he re-
tained Stiebel to maintain the police cars. (T.4-35). In the sum-
mer of 1981, Petitioner told Stiebel that he was not happy with
his performance and warned him that he would take the work
—
elsewhere if Stiebel did not maintain the cars properly.
(T.4-36,37). Petitioner denied that he had anything to do with
Stiebel purchasing two cars in the summer of 1981 or that he
_had any conversations with Stiebel about any cars or the Leisure
bombing. (T.4-35,36).
On cross-examination, the Government asked Petitioner why
he could specifically remember that he had last seen Norman
Peters and Jack Issa in 1964. Petitioner stated that he
remembered because that was when Norman Peters left town.
Then, over the objection of Petitioner, the Government was
permitted to ask:
*‘Isn’t it true that your brother-in-law, Norman Peters,
back in 1964, left town as the result of the murder of
Richard Leisure?’’
and
**Isn’t it true, that at that time, or shortly before that, your
brother-in-law, Norman Peters, had worked on and off for
Jimmy Michaels, Sr.?’’ (1.4-44-50, specifically T.4-49,50).
EVIDENCE MATERIAL TO QUESTION III
Petitioner objected to the admission of three statements, two
by Jimmy Michaels, III, and one by John Michaels, on the
ground that the same were hearsay and were not admissible
under Rule 801(d)(2)(E) of the Federal Rules of Evidence since
the statements were made after the object of the conspiracy had
been accomplished and, thus, were not made during the course
of and in furtherance of the conspiracy.
William Albright testified that on two separate occasions dur-
ing the days immediately following the incident of August 11,
1981, William Albright told Michaels, III, that the FBI had ask-
ed him about the apartment Albright had rented for Michaels,
Ill. (The dates of these conversations are not clear from the
transcript, but the evidence indicates that law enforcement of-
—
ficials were not aware of the apartment until August 15, 1981,
(T.2-81-2-84) and, thus, could not have talked to Albright about
the apartment prior to that date.) According to Albright,
Michaels, III, on the first occasion, responded that there was
nothing to worry about, that no one was in the apartment, that
it had been wiped clean, that he should keep his mouth shut and
that they had been very, very fast. (T.2-123,124). On the second
occasion, Albright testified that Michaels, III, told him that it
was good that he had told the FBI that he did not know
anything, that he should be quiet, that his sources in the City
said they didn’t have anything, that they were fishing, and that
he should stay cool and not say anything if he had to appear
before a grand jury. (T.2-125,126).
Albright also testified that, after August 11, 1981, and ‘‘more
than likely’’ before August 27, 1981, he asked John Michaels
what was happening with the storage garage that he had rented
for John Michaels and that John Michaels replied that he didn’t
know, but would check into it. (T.2-126,127). The storage
garage referred to was the storage garage in which the FBI
found one of the cars which Norm Stiebel testified he bought
for Petitioner and which had been seen at the apartment rented
by Jimmy Michaels, III.
EVIDENCE MATERIAL TO QUESTION IV-A
During its closing argument, the Government made the
following statements:
“*He acted like a criminal and that is exactly what he is.”’
(T.5-22).
‘*([E]very piece of testimony in this case, every piece of
evidence, sooner or later, comes right back to him as a
criminal...’’ (T.5-56).
‘‘All he had to do, ladies and gentlemen, was break the
case, act like a policeman instead of a hoodlum...’’
(T.5-59).
— om
Petitioner was employed as a police office: by St. Louis
County, Missouri, from 1966 to 1974 (T.4-14) and was, and
since 1976 had been, employed as such by the City of St.
George, Missouri, on the day when Leisure’s automobile was
bombed (T.4-16,17,23).
EVIDENCE MATERIAL TO QUESTION IV-B
Three portions of the Government’s closing argument were:
I
‘*‘Somebody on that corner, who was clean, got stopped,
didn’t have anything on them, could give the signal, and
they could hit the remote control device, and they could
blow him up.’’
‘*There were other people out there. Now, who were the
other people?’’
‘*Was it Jimmy Michaels? I am not sure.
‘*Was it Russell Schepp? I can’t tell you that for sure.”’
‘‘Was it Bobby Peters? I can’t tell you that.”’
‘‘Or was it another individual, who we are not aware of,
who was in on the conspiracy, that we don’t know about?
But there was somebody else over there.’’ (T.5-17,18) (Em-
phasis supplied.)
II
‘‘There’s nothing in the instructions say I have to give
you a motive. Was he paid for this? I don’t know. He was
gone twenty months, and his family lived and he lived.
And as to money, /ie was getting money from somewhere.
He walked away from a job, and how many people can do
that for twenty months? ... he may have been paid for it.”’
(T.5-58) (Emphasis supplied.)
II]
‘*And he (referring to John McCrady, a witness called
by the Government) testified that Paul Leisure was a
member of organized crime. He also testified that Jimmy
Michaels, Sr. was involved in and a leader of organized
crime. That’s what vou are dealing with here.’’ (T.5-49)
(Emphasis supplied.)
—' en
ARGUMENT
I
The Writ of Certiorari should be granted to decide an impor-
tant question of federal law which has not been, but should be,
settled by this Court, namely, the breadth of federal jurisdiction
under 18 U.S.C. §844(i).
Count I of the Indictment charged Petitioner with conspiring
to destroy, by means of an explosive, an automobile being used
by John Paul Leisure in the business of Local 42 of the Laborers
International Union of North America, an activity affecting in-
terstate commerce, in violation of Section 844(i), Title 18,
United States Code. Count III of the Indictment is the same as
Count I except that it charges the substantive offense.
Section 844(i) reads, in part, as follows:
‘*Whoever maliciously damages or destroys, or attempts
to damage or destroy, by means of fire or an explosive, any
building, vehicle or other real or personal property used in
interstate or foreign commerce or in any activity affecting
interstate or foreign commerce shall be imprisoned...”’
The history of Section 844(i) indicates that it was intended to
extend jurisdiction to cases involving ‘‘substantially all business
property.’’ H.R. Rep. No. 1549, 91st Congress, 2d Sess.(1970),
reprinted in [1970] U.S. Code Cong. & Ad. News 4007, 4046
(Emphasis supplied). The Courts have recognized this history
and have stated that jurisdiction will extend to cases involving
property having a ‘‘de minimis’’ connection with interstate
commerce. United States v. Mennuti, 487 F.Supp. 539, 544
(E.D.N.Y. 1980), aff'd 639 F.2d 107 (2nd Cir.1981). The
Courts, however, have refused to rule that all property has suf-
ficient contact with interstate commerce to invoke federal
jurisdiction, United States v. Mennuti, supra, and require that
the property damaged ‘‘bear some real relationship to com-
merce’’. United States v. Monholland, 607 F.2d 1311, 1315
(10th Cir. 1979).
Federal Courts are Courts of limited jurisdiction. In a case
brought under Section 844(i), if the Government fails to prove
that the property damaged was used in interstate commerce or
in an activity affecting interstate commerce, the Court is
without jurisdiction and must dismiss the case. United States v.
Monholland, supra at 1316.
In the instant matter, the Government sought to establish that
the Leisure automobile was used in an activity affecting in-
terstate commerce by attempting to prove that Local 42 was
engaged in interstate commerce and that Leisure used the
automobile in his job as a field organizer for Local 42. To that
end, the Government proved that Local 42 mails reports and
checks to the International Union in Washington, D.C. Addi-
tionally, the Government established that Irene Jones, an
employee of Local 42, knew Paul Leisure to be a field organizer
for Local 42, that the duties of a field organizer include the
solicitation of new members and the collection of initiation fees
and dues from members at job sites, that Leisure was on the
payroll of Local 42, that Leisure received an expense allowance
of Two Hundred Dollars ($200.00) per month from Local 42 for
the use of his automobile and that a briefcase containing Local
42 materials was found near his car after the incident of August
11, 1981.
The above proof fails to establish that the Leisure automobile
allegedly damaged by Petitioner was used in an activity affec-
ting interstate commerce. First, the Government did not prove
that Local 42 was engaged in interstate commerce. It merely
showed that Local 42 mailed reports and monies to the Interna-
tional Union.
Second, the Government did not prove that the particular
automobile allegedly damaged by Petitioner was the one used by
Leisure in his work for Local 42. The evidence showed that the
automobile was owned by Leisure personally, not Local 42.
There was no evidence that the automobile allowance received
by Leisure from Local 42 was for the use of that particular
—
automobile. There was no evidence that this was the only auto
owned by Leisure. There was no evidence that Leisure had ever
driven this auto. There was no evidence that any business of
Local 42 had ever been conducted in the auto. There was no
evidence that the auto had ever been at any job site. There was
no evidence that Leisure himself had ever been at any job site or
had ever performed any of the duties of his job. The evidence
was only that among the duties of a field organizer is the
solicitation of members at job sites. There was no evidence of
the amount of travel required of a field organizer. There was no
evidence that Leisure was working at the time of this incident.
In fact, the evidence showed the auto was parked in front of his
home. (T.2-37). There was no evidence that the damaging of
the automobile was in any way motivated by or connected with
Leisure’s position with Local 42. Finally, there was no evidence
that this automobile had ever been driven interstate or carried
anything which had traveled or would travel interstate.
Petitioner’s conclusion that the Government failed to
establish that the Leisure automobile was used in an activity af-
fecting interstate commerce is supported by the decisions of the
courts which have addressed the issue of the breadth of federal
court jurisdiction under Section 844(i). Those decisions stand
for the proposition that Section 844(i) jurisdiction extends to
prosecutions involving commercial property even if that proper-
ty has only a de minimis effect on interstate commerce, but that
Section 844(i) jurisdiction does not extend to prosecutions in-
volving private property.
The two reported decisions concerning private property are
United States v. Monholland, supra and United States v. Men-
nuti, supra. United States v. Monholland presents the fact pat-
tern most similar to the one in the instant case. There, the
defendants were charged, under Section 844(i), with conspiracy
to destroy by means of explosives a pick-up truck owned by a
judge of the State of Oklahoma, the object of the conspiracy be-
ing to kill the judge. The Government sought to establish
—_ oe
jurisdiction of the case by proving, through the testimony of the
judge, that the judge drove the truck to and from his home and
the courthouses of his circuit upon the United States highway
system and that the cases over which he presided involved par-
ties and interests from other States. The Court held that the
above facts did not establish that the truck was used in an activi-
ty affecting interstate commerce. The Court noted that the
truck was used simply to transport the judge to and from his
work. If the truck failed, the judge would use another means of
transportation. The Court continued that, even assuming the
judge’s official duties affected commerce, the truck was im-
material to the performance of those duties, and thus, no rela-
tionship existed between the truck and interstate commerce.
A similar situation exists in the instant matter if the evidence
is construed in the light most favorable to the Government.
Even if we assume that Leisure actually performed the duties of
a field organizer, that he, in fact, used the automobile
allegedly damaged by Petitioner when driving to a job site, and
that his job as a field organizer affects interstate commerce, still
the Government failed to establish the relationship of the
automobile to Leisure’s job, for as, in Monholland, the
automobile was simply used to transport Leisure to his place of
work. His alleged travel to job sites is analagous to the judge’s
travel from one courthouse to another. As in Monholland, no
official business was conducted in the automobile and the
automobile was not necessary to the performance of his duties.
Indeed, the evidence in Monholland is stronger than in the
case at bar for the reason that the judge testified and established
that he, in fact, drove the truck which was to be destroyed to the
courthouses and, in fact, performed the duties of his office. In
the instant matter, the Government did not prove that Leisure
had ever driven the damaged automobile or that he had per-
formed any of the duties of a field organizer.
In United States v. Mennuti, the defendants were charged,
under Section 844(i), with destroying two private residences by
—'
means of explosives for the purpose of collecting the insurance
proceeds. In order to establish that the residences affected in-
terstate commerce, the Government proved that the residences
had been built, financed, maintained and insured with materials
which had traveled in interstate commerce and by companies
which conducted business in interstate commerce. Additional-
ly, the Government argued that the defendant who lived in one
of the residences conducted an arson ring from the residence
which affected interstate commerce. The Court, focusing on
the private nature of the residences, held that the Government
failed to establish that the residences affected interstate com-
merce and, thus, failed to establish jurisdiction under Section
844(i).
The decisions concerning prosecutions involving business or
commercial property destroyed or damaged by explosives are:
United States v. Nashawaty, 571 F.2d 71 (ist Cir. 1978) (paint
company which painted materials shipped worldwide by its
customer); United States v. Barton, 647 F.2d 224 (2nd Cir.
1981) (two buildings each housing illegal gambling clubs which
sold food which had traveled in interstate commerce); United
States v. Giordano, 693 F.2d 245 (2nd Cir. 1982) (a fictitious
piano store which would have sold pianos, the parts of which
had traveled interstate); United States v. Grossman, 608 F.2d
534 (4th Cir. 1979) (a backhoe held for sale in interstate com-
merce); United States v. Corbo, 555 F.2d 1279 (Sth Cir. 1977)
(bookstore selling books which had traveled in interstate com-
merce); United States v. Sweet, 548 F.2d 198 (7th Cir. 1977),
cert. denied 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977)
(tavern containing stocks of liquor which had traveled in-
terstate); United States v. Keen, 508 F.2d 986 (9th Cir. 1974)
(commercial fishing boat the catch from which was shipped in-
terstate); United States v. Andrini, 685 F.2d 1094 (9th Cir. 1982)
(commercial office building being constructed with materials
| which had traveled interstate); and United States v. Schwanke,
598 F.2d 575 (10th Cir. 1979) (building housing cafe which sold
food which had traveled interstate).
PE
=
In each of the above cases, the Courts found jurisdiction
under Section 844(i). The commercial or business nature of the
properties involved cannot be doubted for in each case the
Government proved not only that the real or personal property
damaged was used in a business (a building housing a
restaurant, for example) but also that the business had interstate
contacts (the restaurant sold food which had been shipped in-
terstate). Thus, the above decisions reflect the purpose of Con-
gress in enacting Section 844(i), namely, to protect interstate
commerce from interference and interruption, H.R. Rep. No.
1549, supra at 4013, and respect the intent of Congress that
jurisdiction under Section 844(i) extend only to property having
a relationship with interstate commerce, for, while Section
844(i) is broadiy drawn, it does not reach ‘‘everybody and
everything’’. United States v. Monholland, supra at 1316.
Petitioner notes for this Court’s information, that the Peti-
tion For Certiorari of James A. Michaels, fII, which raised thi:
issue, among others, was denied. United States v. Michaels, 726
F.2d 1307 (8th Cir. 1984), cert. denied United States Supreme
Court Cause No. 83178 (1984). Petitioner submits, however,
that substantially different proof relating to the use of the
Leisure automobile in an activity affecting interstate commerce
was elicited in the Michaels case.
II.
The Writ of Certiorari should be granted for the reason that
the decision of the United States Court of Appeals for the
Eighth Circuit on the issue of whether the trial court erred in
permitting the Government to inquire of Petitioner whether it
was true that Petitioner’s brother-in-law left town as a result of
the murder of Richard Leisure and whether that same brother-
in-law worked for Jimmy Michaels, Sr., is in conflict with deci-
sions of the United States Court of Appeals for the Fifth Circuit
in United States v. Ochoa, 609 F.2d 198 (Sth Cir. 1980); United
States v. Labarbera, 581 F.2d 107 (Sth Cir. 1978); United States
_
v. Singleterry, 646 F.2d 1014 (Sth Cir. 1981); and United Srates
v. Romo, 669 F.2d 285 (Sth Cir. 1982).
Rule 611(b) of the Federal Rules of Evidence limits cross-
examination to ‘‘the subject matter of the direct examination
and matters affecting the credibility of the witness.’’ With
regard to a defendant in a criminal case, it has been stated that:
‘‘cross-examination in response to statements of the defen-
dant made on direct examination must either clarify the
point raised or tend to directly impeach the defendant on
that point.’’ United States v. Crawford, 438 F.2d 441 (8th
Cir. 1971).
It is a:
‘‘long-established rule that a defendant’s guilt may not be
proven by showing that he associates with unsavory
characters. ..*That one is married to, associates with, or in
the company of a criminal does not support the inference
that that person is a criminal or shares the criminal’s guilty
knowledge. ..* [A]dmission of evidence of bad conduct of
relatives or friends is error.’’ United States v. Singleterry,
646 F.2d 1014, 1018 (Sth Cir. 1981) (Citations omitted).
In United States v. Ochoa, 609 F.2d 198 (Sth Cir. 1980),
several persons were charged with distribution and conspiracy
to distribute heroin. One of the defendants, Juanita Cavazos,
took the stand and testified that she had lived with her brother,
Manuel, that she had met a codefendant through her friend,
Molly, and that she had nothing to do with the drug transac-
tions which were the subject of the charges against her. Addi-
tionally, she presented the testimony of two witnesses who
testified, in substance, that she was a good worker, a good
mother, a nice lady, dependable and truthful.
On cross-examination, the Government was permitted to
elicit from Cavazos the facts that her brother, Armando, her
brother-in-law and Molly had been in trouble with the law for
drugs.
Fn
The Court held that the cross-examination of Cavazos was
improper and reversed her conviction. The Court stated that
Cavazos had not opened herself to cross-examination regarding
the offenses of any of those people, and that the questioning
was not necessary to clarify any matter left unclear on her direct
examination, but was a highly prejudicial attempt to taint the
defendant’s character by guilt by association. See also United
States v. Labarbera, 581 F.2d 107 (Sth Cir. 1978); United States
v. Singleterry, 646 F.2d 1014 (Sth Cir. 1981); United States v.
Romo, 669 F.2d 285 (Sth Cir. 1982).
When applied to the facts in the case at bar, the law stated
above requires one to conclude that the Court below erred in
permitting the cross-examination of which Petitioner com-
plains. Petitioner did not open the door to such cross-
examination about Norman Peters. Petitioner did not place his
general character in issue. The only character evidence was the
testimony of three witnesses called by Petitioner that Petitioner
is truthful. The cross-examination concerning Peters in no way
concerned Petitioner’s truthfulness and was, thus, improper
under Rule 404 of the Federal Rules of Evidence.
Petitioner did not place the conduct or character of Norman
Peters in issue. He simply stated, by way of background infor-
mation, that he was his brother-in-law and had last seen him in
1964. Neither the Indictment nor the Government’s evidence
indicated that Normal Peters had anything to do with the events
which gave rise to the prosecution of Petitioner. Norman Peters
and his activities are totally irrelevant to this case.
The cross-examination did not serve either of the recognized
purposes of cross-examination. It did not clarify a point left
unclear on direct examination as Petitioner stated unequivocally
on direct examination that he had last seen Norman Peters in
1964. It did not tend to directly impeach Petitioner on the point
that he had last seen Norman Peters in 1964. In fact, the ques-
tion implies that the Government knew that Petitioner had not
seen Norman Peters since 1964.
—
The cross-examination served only one purpose — to pre-
judice the jury by insinuating that Petitioner, like his brother-
in-law before him, worked with a Michaels to murder a Leisure.
The insinuation was strengthened by the Government’s allega-
tions that another Peters, Robert, was involved with Petitioner.
There can be no argument from the Government that this
cross-examination did not prejudice Petitioner.
**When, in the prosecution of a defendant, counsel for the
government indulges in unfair and improper cross-
examination, the only purpose of which is to degrade the
defendant and to prejudice the jury against him, the
government, upon appeal, will not ordinarily be heard to
say that the methods which were used did not have the ef-
fect which they were obviously intended to have.”’
Crawford, supra at 445.
Ill.
The Writ of Certiorari should be granted for the reason that
the decision of the United States Court of Appeals for the
Eighth Circuit on the issue of whether certain out-of-court
statements of alleged co-conspirators of Petitioner were ad-
missible under Rule 801(d)(2)(E) of the Federal Rules of
Evidence is in conflict with the decision of this Court in
Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93
L.Ed. 790 (1949).
The trial court permitted two out-of-court statements by
James A. Michaels, II], and one out-of-court statement by John
Michaels to be introduced in evidence against Petitioner under
Rule 801(d)(2)(E) of the Federal Rules of Evidence which pro-
vides that a statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy is not hearsay. All
iliree of the statements were made after August 11, 1981, tne
date on which Leisure’s automobile was bombed.
=
A statement is made during the course of a conspiracy if made
after the conspiracy comes into existence and before the objec-
tive of the conspiracy is accomplished. Arulewitch v. United
States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). A state-
ment is in furtherance of the conspiracy if it advances the in-
terests or the object of the conspiracy. Harrington v. United
States, 267 F. 97 (8th Cir. 1920). Weinstein’s Evidence (1975),
p. 801-143. The ‘‘in furtherance’’ requirement should be con-
strued in a manner to be protective of the defendant.
‘*Narrative declarations should not be admitted as a matter
of course and statements of confession should be carefully
scrutinized. Since prejudice is likely, the harmless error
rule should seldom be relied upon by the trial judge.
Whether a particular statement tends to advance the objec-
tive of the conspiracy can only be determined by examina-
tion of the context in which it was made.”’
Weinstein’s Evidence (1975), p.801-147.
The Government must prove by a preponderance of the
evidence independent of the statements sought to be introduced
that a conspiracy existed, that the defendant was a member of it
and that the statement was made during the course and in fur-
therance of the conspiracy. United States v. Bell, 573 F.2d
1040, 1044 (8th Cir. 1978).
In Krulewitch v. United States, supra, the defendant and a
co-conspirator were charged with transporting a woman on Oc-
tober 20, 1941, from New York to Florida for the purpose of
prostitution. At the defendant’s trial, the Government in-
troduced evidence of a statement made six weeks after October
20, 1941, by the co-conspirator to the complaining witness out-
side the presence of the defendant. In the statement, the co-
conspirator told the complaining witness not to talk, to be
careful what she said and that it would be better for the com-
plaining witness and the co-conspirator to take the blame. 93
L.Ed. at 793.
The Government recognized that the chief objective of the
conspiracy - transportation of the woman from New York to
Florida for prostitution purposes - had been accomplished
before the statement was made. Notwithstanding the same, the
Government argued that the statement should be admissible
under the co-conspirator exception to the hearsay rule as a
declaration made in furtherance of an alleged implied con-
spiracy aimed at preventing detection and punishment. 93 L.Ed.
at 794. This Court rejected the Government’s argument and
held that the statement was not admissible.
Applying the proposition of law set forth in Krulewitch,
supra, to the instant matter, requires one to conclude that the
statements of Jimmy Michaels, III, and John Michaels made
after August 11, 1981, were not admissible against Petitioner
under Rule 801(d)(2)(E). The objective of the conspiracy alleg-
ed in the Indictment was the injury or death of John Paul
Leisure. That was accomplished on August 11, 1981, and,
thereupon, the conspiracy ended. Thus, statements made after
that date could not have been made in furtherance of or during
the course of the conspiracy. Moreover, since the declarations
concerned prevention of the detection of the crime, they are ex-
actly the type of statements this Court ruled do not fall within
the co-conspirator’s statement exception to the hearsay rule.
The admission of the statements of Michaels, III, made after
August 11, 1981, prejudiced Petitioner because they inculpated
Michaels, III, with and through whom Petitioner allegedly
acted, because they implied the apartment had been used in con-
nection with the incident of August 11, 1981, and because the
Statements that no one was in the apartment and that it had
been wiped clean substantiated the Government’s speculation
that on August 17, 1981, the apartment was vacant and no
evidence could be found in it because it had been cleaned.
(T.3-123,3-128-3-131).
Petitioner was prejudiced by the admission of John
Michaels’s statement about checking on the garage since it
js see
created the impression that John Michaels might be a con-
spirator and since that impression, together with the evidence
that John Michaels’ automobile was seen at the Arnold Ten-
brook apartment complex, strengthened the Government’s
argument that only conspirators had been allowed at the apart-
ment. (T.5-16).
1V
The Writ of Certiorari should be granted for the reason that
decision of the United States Court of Appeals for the Eighth
Circuit in the case at bar on the issue of alleged improprieties
committed by the United States Attorney during closing argu-
ment is contrary to the decision of the United States Court of
Appeals for the Sixth Circuit in United States v. Barker, 553
F.2d 1013 (6th Cir. 1977), the decisions of the United States
Court of Appeals for the Fifth Circuit in Hall v. United States,
419 F.2d 582 (Sth Cir. 1969) and in United States v. Morris, 568
F.2d 396, 401 (Sth Cir. 1978), and the spirit of the decision of
this Court in Berger v. United States, 295 U.S. 78, 55 S.Ct.
629, 78 L.Ed. 1314 (1935).
The purpose of closing argument is to permit each party to
State to the jury the conclusions which that party feels are re-
quired by the evidence. Thus, the closing argument must be
limited to comments supported by the evidence or reasonable
inferences flowing therefrom. United States v. Bigeleisen, 625
F.2d 203, 209-210 (8th Cir. 1980). United States v. Bledsoe, 531
F.2d 888, 892 (8th Cir. 1976) The Government ‘‘may not say
anything to the jury implying that evidence supporting his posi-
tion exists, but was not introduced at trial.’’ United States v.
Morris, 568 F.2d 396, 401 (Sth Cir. 1978).
The leading case on prosecutorial misconduct is Berger v.
United States, 295 U.S. 7%, 88, 55 S.Ct. 629, 633, 78 L.Ed. 1314
(1935). In that case, the improprieties of the United States At-
torney, in conducting cross-examinations and in closing argu-
ment, caused the defendant’s conviction to be reversed. This
Court stated:
—_—
saint ail iia ath
—.
‘*The United States Attorney is the representative not of
an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or in-
nocence suffer. He may prosecute with earnestness and
vigor - indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
ca.culated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less
degree, has confidence that these obligations, which so
plainly rest upon the prosecuting attorney, will be faithful-
ly observed. Consequently, improper suggestions, insinua-
tions, and, especially, assertions of personal knowledge are
apt to carry much weight against the accused when they
should properly carry none.”’
A.
Characterizations Of Petitioner As A ‘‘Hoodlum’”’
And ‘‘Criminal’’
Petitioner submits that the statements characterizing Peti-
tioner as a “‘criminal’’ and ‘‘hoodlum”’ were improper for three
reasons. First, the statements refer to the character of Peti-
tioner and Petitioner had not placed his character in issue. In
United States v. Barker, 553 F.2d 1013 (6th Cir. 1977), the
Court of Appeals for the Sixth Circuit stated that:
“the prosecution may not rely upon the defendant’s bad
character to prove guilt unless the defense has sought to ex-
culpate him by proof of good character.’’ 553 F.2d at
1025.
=
In Barker, supra, the defendants were charged with armed
bank robbery. They had not produced character evidence. The
defense attorney argued:
‘*that police had charged the defendants because they were
‘undesirables to law enforcement agencies’ and not
because they were guilty of the offenses charged.’’ 553
F.2d at 1025.
The United States Attorney remarked during rebuttal,
‘* ‘Now I submit to you that desirable people don’t rob
banks; undesirable people do rob banks, and they admit
they’re undesirable. Because they’re undesirable doesn’t
mean they robbed this bank, but you should consider that
also along with all this other evidence.’ ’’ 553 F.2d at 1025.
The Court of Appeals held that the Government’s attorney had
violated his responsibilities under Berger by relying upon
references to the defendant’s character to prove guilt when the
defendants had not sought to prove their good character. 553
F.2d at 1025.
Second, there was no evidence to support the characteriza-
tions of Petitioner. Both ‘‘criminal’’ and *“‘hoodlum’’ imply a
prior course of illicit conduct. No evidence was introduced that
Petitioner had ever engaged in any type of illegal conduct.
Third, the references to Petitioner as a ‘‘hoodlum’’ and
‘*criminal’’ were improper because they were in violation of the
duty of the United States Attorney ‘‘to refrain from improper
methods calculated to produce a wrongful conviction.’’ Berger
v. United States, supra 295 U.S. at 88. Hall v. United States,
419 F.2d 582 (Sth Cir. 1969) is on point. In that case, the United
States Attorney described the defendant as a ‘‘hoodlum’’. Hail,
supra at 585. There was no objection to the use of the term. The
Court held that that characterization of the defendant, together
with other remarks of the prosecutor, required reversal. The
Court stated:
et a a ee ee ee
SSCA ORES eS Cae.
tis
‘*This type of shorthand characterization of an accused,
not based on evidence, is especially likely to stick in the
minds of the jury and influence its deliberations. Out of
the usual welter of grey facts it starkly rises - succinct,
pithy, colorful, and expressed in a sharp break with the
decorum which the citizen expects from the representative
of his government.”’
Hall, supra at 587.
That the use of such terms deprived Petitioner of a fair trial
cannot be questioned since the outcome of the trial depended
upon whether the jury believed Petitioner’s testimony. When
the Government characterized Petitioner as a hoodlum and a
criminal, the Government told the jury that Petitioner was not
worthy of belief.
B.
Statements Not Supported by Evidence
The portions of the Government’s argument implying that
Petitioner gave the signal when to detonate the bomb which
damaged Leisure’s car, that Petitioner was paid for his alleged
involvement in the conspiracy charged and that organized crime
was involved in the incident out of which the instant prosecu-
tion arose were improper for three reasons.
First, the arguments were not supported by the evidence.
United States v. Bigeleisen, supra and United States v. Bledsoe,
supra, each concern arguments of the Government not sup-
ported by the evidence. In Bigeleisen, the United States At-
torney, in order to explain why the testimony of two Govern-
ment witnesses differed as to the quantity of drugs which had
been sold, stated that the Internal Revenue Service was looking
at the witness who testified that a lesser quantity of drugs had
been sold. There was no evidence that the Internal Revenue Ser-
vice was investigating the witness. For that reason, the Court
held the argument to be improper. In Bledsoe, the defendant
=
was charged with making a false statement when purchasing a
firearm. The defense was that the defendant did not understand
the question asked when she made the false statement. The
Government argued that the defendant knew about guns
because she had a parole officer and parole officers tell their
clients to stay away from guns. Because there was no evidence
that the defendant had a parole officer or had been told to stay
away from guns, the Court held the argument improper.
In the instant matter, there was no evidence to support the
Government’s assertion that someone, especially Petitioner,
stood on a corner near the site of the Leisure incident and gave a
signal to anyone to activate a remote control device. Nor was
there any evidence that Petitioner was receiving money from
somewhere or that he was getting paid for his alleged involve-
ment in the conspiracy charged. There was absolutely no
evidence about Petitioner’s financial status either in general or
during the period while he was absent from St. Louis. Finally,
there was no evidence that Jimmy Michaels, Sr., was a leader of
organized crime or that the incident of August 11, 1981, was in
any way connected with organized crime. The only mention of
organized crime in the entire trial occurred when John McCrady
testified that James Michaels, Sr., and Paul Leisure were both
organized crime figures in St. Louis. There was no evidence
that anyone allegedly involved in the incident of August 11,
1981, had anything to do with organized crime.
The second reason that che arguments were improper is that,
by engaging in argument not supported by the evidence, the
United States Attorney again violated his duty, to see ‘‘that
justice shall be done.’’ Berger v. United States, supra 295 U.S.
at 88.
The argument first set forth above is improper for still
another reason - it violated the rule that an attorney ‘‘may not
say anything to the jury implying that evidence supporting his
position exists, but was not introduced at trial.’’ United States
v. Morris, supra. By stating, ‘*Was it Russell Schepp? I can’t tell
isis Pach
you that for sure,’’ when there was no evidence that Petitioner
or anyone was on the corner, the Government insinuated that it
had some, but not conclusive, evidence that Petitioner was the
person on the corner who gave the signal to detonate the bomb
on Leisure’s automobile.
These arguments deprived Petitioner of a fair trial. When the
Government could not establish how the two men sitting in the
Chevrolet allegediy purchased by Petitioner could have seen
Leisure to know when to detonate the bomb, the Government
asserted that a person was out there who could see both Leisure
and the two men in the Chevrolet and that that person gave the
signal to detonate the bomb - al!, of course, without a shred of
evidence to support the assertion. When the Petitioner argued
that he had no reason to be involved in the conspiracy charged,
the Government suggests he was paid for his involvement
although not one iota of evidence was introduced to support
that assertion. When the Petitioner argued that his involvement
in the conspiracy was a figment of the Government’s imagina-
tion, that the proof was not there, the Government tells the jury
to put the proof in perspective, that its dealing with organized
crime.
Such argument by a United States Attorney should not be
tolerated for, certainly, these blows were not only hard, but
foul.
Respectfully submitted,
George J. Miller
1015 Locust Street
St. Louis, Missouri 63101
(314) 421-6310
J. Martin Hadican
Joyce Y. MacDonald
225 South Meramec, Suite 832
St. Louis, Missouri 63105
(314) 863-0050
Attorneys for Petitioner
APPENDIX
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 83-2244
United States of America,
Appellee,
ws
Milton Russell Schepp,
Appellant.
Appeal from the United
States District Court
for the Eastern District
of Missouri
Submitted: May 16, 1984
Filed: October 11, 1984
Before ROSS, BENNETT* and McMILLIAN, Circuit Judges.
* The Honorable Marion T. Bennett, Circuit Judge for the United
States Court of Appeals for the Federal Circuit, sitting by designation.
McMILLIAN, Circuit Judge.
—_ =.
Milton Russell Schepp appeals from a final judgment entered
in the District Court' for the Eastern District of Missouri upon a
jury verdict finding him guilty of conspiracy to damage by
means of an explosive a vehicle used in an activity affecting in-
terstate commerce in violation of 18 U.S.C. §§ 2 and 844(i)
(1976), making an unregistered explosive device in violation of
26 U.S.C. § 5822 (1976), and damaging by means of an ex-
plosive a vehicle used in an activity affecting interstate com-
merce in violation of 18 U.S.C. § 844(i) (1976). Appellant was
sentenced to terms of five, ten and ten years of imprisonment,
respective'y, to run concurrently. For reversal appellant argues
that the district court erred in (1) admitting evidence of flight,
(2) permitting the government to ask leading questions of one of
its witnesses, (3) failing to restrict the government’s cross-
examination of appellant, (4) admitting out-of-court statements
of a coconspirator, and (5) failing to declare a mistrial sua
sponte because of improper closing remarks by the
government.’ For the reasons discussed below, we affirm the
judgment of the district court.
At trial the government established the following facts. On
September 17, 1980, Jimmy Michaels, Sr., was killed when a
bomb exploded in his car. His grandson, Jimmy Michaels, III,
indicated to a friend, William Albright, and to a police officer
that he intended to avenge his grandfather’s death.
' The Honorable John F. Nangle, Chief Judge, United States
District Court for the Eastern District of Missouri.
> Appellant raised two additional points on appeal: (1) that the
government failed to establish that the damaged vehicle was used in an
activity affecting interstate commerce and (2) that the district court er-
red in admitting evidence seized from a trash dumpster, an apartment
and a storage garage. We hold that United States v. Michaels, 726
F.2d 1307 (8th Cir. 1984), is controlling on these points and rule them
against appellant.
—
In March 1981, appellant, then chief of police of the City of
St. George, Missouri, asked Norman Steibel, owner of an auto
repair shop, to purchase two inexpensive automobiles for him
using fictitious names. Steibel purchased a Ford and a Chevrolet
foi which appellant paid him in cash. In April 1981, Albright
rented an apartment for Michaels for six months in a sixteen-
unit apartment complex in Arnold, Missouri, and in June 1981,
Albright rented a storage garage in Fenton, Missouri, for
Michaels. Michaels told Albright that Albright could not keep a
key to the apartment because there would be people in and out
of the apartment all the time.
During the spring and summer of 1981, the Ford and
Chevrolet purchased for appellant, as well as a car with the per-
sonalized license plate ‘“‘SCHEPP,’’ were seen outside the
rented apartment.
On the morning of August 11, 1981, Paul Leisure was serious-
ly injured when a bomb exploded in his car in front of his
house. A brief case, containing papers and documents from
Local 42 of the Laborer’s International Union for which Leisure
worked as a field organizer, was found on the ground near the
car. An investigation revealed that a remotely activated, high
explosive bomb was used. The Chevrolet purchased for ap-
pellant was seen parked one block away from Leisure’s house at
the time of the explosion with two men inside, later identified as
Jack Issa and George Faheen. The men kept their attention
focused on the corner Fotomat booth, from where Leisure’s
house was visible. A remote control device had recently been
purchased by a man driving a red Volkswagen, which was the
type of car driven by Faheen.
An FBI investigation led to Albright, Steibel, the rented
apartment, and the storage garage. On August 15, 1981, FBI
agents searched, without a warrant, the trash dumpster shared
by all tenants of the apartment complex and found in a plastic
garbage bag materials used in the manufacture of a bomb. In
—
another plastic bag they found mail addressed to the apartment
rented for Michaels and magazines bearing the fingerprints of
appellant and Michaels. A warranted search of the apartment
revealed that it had been wiped clean of fingerprints. However,
one fingerprint belonging to Michaels was recovered. Agents
searched the storage garage and found the Ford purchased by
Steibel for appellant.
Albright informed Michaels that the FBI had questioned him
concerning the apartment. Michaels told Albright not to worry
because the apartment had been wiped clean and that he should
not say anything if called before a grand jury. Steibel informed
appellant that the FBI was questioning him about the two cars.
Appellant told Steibel not to mention his name and that the
Ford was in a garage. On August 17, 1981, one day after speak-
ing to Steibel, appellant left St. Louis and went to California
where he remained until March 1983 when he voluntarily sur-
rendered to face the charges against him for the Leisure car
bombing.
Appellant testified that he had gone to the rented apartment
several times during the summer of 1981 with one of his ex-
brothers-in-law, Robert Peters, to drink beer and watch
baseball games. His ex-wife’s family, the Peters, was close to
the Michaels family. Appellant testified that he left St. Louis
because he received a phone call telling him that the Leisures
planned to take reprisals against everyone who had been in the
rented apartment.
During cross-examination, the government was permitted,
over objection, to ask whether appellant’s ex-brother-in-law,
Norman Peters, left town in 1964 as a result of the murder of
Richard Leisure and whether Peters had worked as a bodyguard
for Jimmy Michaels, Sr. In closing argument the government
theorized that at the time of the bombing someone was position-
ed in the Fotomat booth to signal to the men in the Chevrolet
when to activate the remote control device. The government
pay, yom
suggested that appellant’s motive for involvement in the crimes
charged may have been money. The government made mention
of organized crime in St. Louis, referred to appellant as a
criminal and argued that in leaving St. Louis appellant did not
behave as a police officer but as a hoodlum.
Admission of Flight Evidence
Appellant argues that the district court erred in admitting
evidence that he fled St. Louis following the bomb incident
upon learning that the FBI questioned Steibel about the two
cars purchased for appellant. Appellant argues that this
evidence was irrelevant or too prejudicial to be admitted. We
disagree.
It is well settled that flight of the accused subsequent to the
commission of a crime is, in certain instances, a circumstance
proper to be laid before the jury as having a tendency to prove
guilt. United States v. Peltier, 585 F.2d 314, 322-24 (8th Cir.
1978), cert. denied, 440 U.S. 945 (1979). In Peltier we held that
in assessing the probative value of flight evidence, the facts of
each case must be scrutinized to determine the strength and
validity of drawing the following four inferences: (1) from the
defendant’s behavior to flight; (2) from flight to consciousness
of guilt; (3) from consciousness of guilt to consciousness of guilt
concerning the crime charged; and (4) from consciousness of
guilt concerning the crime charged to actual guilt of the crime
charged. /d.; see also United States v. Rossbach, 701 F.2d 713,
719 (8th Cir. 1983); United States v. Blue Thunder, 604 F.2d
550, 556 (8th Cir.), cert. denied, 440 U.S. 902 (1979).
We hold that there are sufficient ‘‘evidentiary
manifestations,’’ see United States v. Peltier, 585 F.2d at 323, in
the present case to support all four of the necessary inferences.
Appellant fled soon after the commission of the crime and, ac-
cording to the government’s evidence, immediately upon learn-
ing that the FBI’s investigation uncovered the link between the
two cars purchased for him and the crimes. Compare United
—
States v. White, 488 F.2d 660, 662 (8th Cir. 1973) (instructing
the jury that it may consider flight evidence in its determinatin
of guilt held not appropriate where the defendant, unaware that
he was being sought for the crime charged, fled from police at-
tempting to arrest him five months after commission of crime).
Appellant’s own explanation for his flight, i.e., fear of reprisal
by the Leisure family, suggests that his decision to flee may have
been prompted by consciousness of guilt, and hence actual
guilt, of the crimes charged.
The degree to which the probative value of the flight evidence
may have been outweighed by the danger of unfair prejudice,
under Fed. R. Evid. 403, was a matter within the discretion of
the district court. The district court did caution the jury against
giving undue emphasis to the flight evidence. We find no abuse
of discretion in the admission of evidence of appellani’s flight.
Leading Questions
Appellant next argues that the district court erred in permit-
ting the government to use leading questions during its direct ex-
amination of its key witness, Steibel. The record does not reveal
a pattern of leading questions. Rather, three questions during a
long examination were objected to. Rule 611(c), Fed. R. Evid.,
permits the district court to allow leading questions when
necessary to develop testimony. The use of leading questions is
a matter left to the discretion of the district court. McClard v.
United States, 386 F.2d 495, 501 (8th Cir. 1967), cert. denied
sub nom. Ussery v. United States, 393 U.S. 866 (1968). We find
no abuse of discretion here.
Cross-Examination of Appellant
Appellant also claims reversible error in the district court’s
allowing the government to inquire of appellant on cross-
examination whether his ex-brother-in-law, Norman Peters, had
worked for Jimmy Michaels, Sr., and whether Peters left St.
Louis in 1964 as result of the murder of Richard Leisure. Ap-
— *.
pellant argues that this was an improper attempt by the govern-
ment to prejudice appellant in the eyes of the jury by showing
that his acquaintances were men of bad character and involved
in criminal activity similar to that for which appellant was
charged.
On direct examination appellant testified about the nature of
his relationship with Norman Peters and that he had last seen
Norman Peters in 1964. Under Fed. R. Evid. 601(b), cross-
examination is limited to the subject matter of direct examina-
tion and credibility, with discretion in the district court to per-
mit inquiry into additional matters where that would aid in the
development of the evidence. The permissible extent of cross-
examination is a matter within the broad discretion of the
district court. United States v. Drake, 542 F.2d 1020, 1022 (8th
Cir. 1976), cert. denied, 429 U.S. 1050 (1977). We find no
abuse of discretion in this instance.
Coconspirator’s Statements
Appellant argues that the district court improperly admitted
several out-of-court statements of Michaels because these
statements were not made in furtherance of and during the
course of the conspiracy as required by Fed. R. Evid.
801(d)(2)(E). The specific statements challenged are the
statements to Albright and a police officer indicating Michaels’
intention to retaliate against those responsible for his grand-
father’s death, the statement to Albright that people would be
going in and out of the rented apartment, and the statement to
Albright that the apartment had been wiped clean of finger-
prints and not to say anything to a grand jury.
Fed. R. Evid. 801(d)(2)(E) provides that a statement is not
hearsay if it is offered against a party and constitutes ‘‘a state-
ment by a coconspirator of [the] party during the course and in
furtherance of the conspiracy.’’ For an out-of-court statement
to be admissible against a defendant under this provision, the
government must demonstrate by a preponderance of indepen-
—_*
dent evidence (1) that a conspiracy existed, (2) that the defen-
dant and the declarant were members of the conspiracy, and (3)
that the statement was made during the course and in fur-
therance of the conspiracy. United States v. Bentley, 706 F.2d
1498, 1506 (8th Cir. 1983), cert. denied, 104 S. Ct. 2397 (1984);
United States v. Bell, 573 F.2d 1040, 1043-44 (8th Cir. 1978).
The third requirement for admissibility, in issue here, is af-
forded a broad construction, United States v. Bentley, 706 F.2d
at 1506, and we conclude that it was satisfied in the present case
with respect to the statement that people would be going in and
out of the rented apartment. The question whether the other
challenged statements were made ‘‘during the course’’ of the
conspiracy is more difficult. See 4 J. Weinstein & M. Berger,
Weinstein’s Evidence € 801(d)(2)(E)[01] (1978 & Supp. 1984),
for a discussion of admission of ‘‘pre-conspiracy”’ and ‘‘post-
conspiracy’’ statements. Even assuming, however, that these
Statements were not made during the course and in furtherance
of the conspiracy, we conclude that any error in their admission
was harmless. See United States v. Bentley, 706 F.2d at 1506.
The statements did not mention or in any way implicate ap-
pellant and there was overwhelming independent evidence of
the existence of a conspiracy and Michaels’ and appellant’s par-
ticipation therein. In the circumstances of this case, there is not
a reasonable possibility that this evidence contributed to ap-
pellant’s conviction and any error in its admission does not re-
quire reversal. See id.; United States v. Moss, 544 F.2d 954, 960
(8th Cir. 1976), cert. denied, 429 U.S. 1077 (1977).
Closing Argument
Appellant’s final argument on appeal is that the district court
erred in not declaring a mistrial because of improper and pre-
judicial closing remarks by the government. Appellant cites as
grounds for reversal the government’s hypothesis about a con-
spirator at the Fotomat booth, suggestion regarding appellant’s
motive for participation, mention of organized crime, reference
= ———ee
EEE
—< po
to appellant as a criminal and characterization of appellant’s
behavior as that of a hoodlum.
The district court has broad discretion in controlling closing
argument, and absent a showing of abuse of that discretion, this
court will not reverse. United States v. Michaels, 726 F.2d 1307,
1315 (8th Cir. 1984); United States v. Auerbach, 682 F.2d 735,
739 (8th Cir.), cert. denied, 459 U.S. 911 (1982); United States
v. Bohr, 581 F.2d 1294, 1301 (8th Cir.), cert. denied, 439 U.S.
958 (1978). We believe that the first comment pointed to by ap-
ellant was fairly supported by the evidence or reasonable in-
ferences flowing therefrom and that the second comment was
invited by appellant’s closing argument asking the jury to focus
on the question of what reason appellant would have had to get
involved in the crimes charged.
We are more troubled by the government’s mention of
organized crime and especially by the government’s reference to
appellant as a criminal and characterization of appellant’s
behavior as that of a hoodlum. Statements such as these have
no place in a criminal trial. They are offensive and in no way
condoned by this court. Had a request been made, it would
have been proper for the district court to strike these remarks
and promptly instruct the jury to disregard them. The question
on appeai, however, is whether, when viewed in the context of
the entire trial, these remarks were ‘‘so offensive as to deprive
the defendant of a fair trial.’’ United States v. Bohr, 581 F.2d
at 1301. With this in mind we hold that the remarks of the
government do not require reversal. See United States v.
Michaels, 726 F.2d at 1316; United States v. Splain, 545 F.2d
1131, 1135 (8th Cir. 1976).
Accordingly, we affirm the judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT
— A-10 —
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 83-2244-EM. September Term, 1984
United States of America,
Appellee,
VS.
Milton Russell Schepp,
Appellant.
Appeal from the United States
District Court for the
Eastern District of Missouri
Appellant’s petition for rehearing en banc has been con-
sidered by the Court and is denied.
Petition for rehearing by the panel is also denied.
November 8, 1984
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