Petition for Writ of Certiorari — Grassi v. United States

36 -3 4% Supreme Court, U.S. ]

FILED

SEP 2 1986 |

No. ——

JOSEPH EF SPANIOL, JR. |

TLERK i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

DANTE GRASSI & DOMINIC SANTARELLI,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR 7 ELEVENTH CIRCUIT

JOHN B. ANDERSON JOSEPH N. ONEK *

2720 35th Place, N.W. JOEL I. KLEIN

Washington, D.C. 20007 PAUL M. SMITH

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsel for Petitioner

* Counsel of Record

W1iLSON - EPES PRINTING Co., INC. - 7898-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the potential availability of a declarant as

a defense witness invariably obviates the need for any

showing of either reliability or unavailability in Con-

frontation Clause cases.

2. Whether hearsay statements admissible under the

federal rules of evidence are automatically deemed re-

liable for Confrontation Clause purposes.

3. Whether hearsay statements concerning the bad

reputation of a Hobbs Act defendant, made without the

defendant’s knowledge, are admissible at trial absent a

special showing of need.

(i)

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT.....................

I.

II.

Introduction of Hearsay Testimony to Establish

the Subjective Fear of the Alleged Victims De-

nied Petitioners Their Rights Under the Con-

frontation Clause of the Sixth Amendment........

A. The Relevance of the Declarant’s Availability

EEE

B. The Significance of Admissibility Under An

Exception to the Hearsay Rule .........................

The Court Admitted the Evidence Linking Peti-

tioners with Organized Crime Without Under-

taking the Full Weighing of Probative Value

and Prejudicial Effect Mandated by the Federal

ES TR eT

ETI A CE

(iii)

Page

14

iv

TABLE OF AUTHORITIES

CASES: Page

Boone v. Marshall, 760 F.2d 117 (6th Cir. 1985) .... 15

California v. Green, 399 U.S. 145 (1970) -.........-...... 7,10

Carbo v. United States, 314 F.2d 718 (9th Cir.

1963), cert. denied, 377 U.S. 953 (1964) ............ 24

Douglas v. Alabama, 380 U.S. 415 (1965).................. 7

Dutton v. Evans, 400 U.S. 74 (1970) .........22202.......- 7

Hoover v. Beto, 439 F.2d 913 (5th Cir. 1971),

rev'd on other grounds, 467 F.2d 516 (en banc),

cert. denied, 409 U.S. 1086 (1972) .........00002.00022..... 11

Lee v. Illinois, 106 S. Ct. 2056 (1986) _............. 7,10, 15, 16

Mancusi v. Stubbs, 408 U.S. 204 (1972) .....20......... 9

Mattes v. Gagnon, 700 F.2d 1096 (7th Cir. 1983). 16

New York Life Insurance Co. v. Taylor, 147 F.2d

SS ee casas 14

Ohio v. Roberts, 448 U.S. 56 (1980) .....0.000202222 2. passim

Ottomano v. United States, 468 F.2d 269 (1st Cir.

1972), cert. denied, 409 U.S. 1128 (1978) ............ 15

Park v. Huff, 493 F.2d 923 (5th Cir. 1974), rev’d

on other grounds, 506 F.2d 849 (en banc), cert.

Geiod, GIB UB. BEG. CABS) oncceceecsnecacescinecscnnsa.-..... 11

Sanson v. United States, 467 U.S. 1264 (1984) ....... 16

Simmons v. United States, 440 F.2d 890 (7th Cir.

| ty EPPA ERT MI Ree eae a, EE 11

Tennessee v. Street, 105 S. Ct. 2078 (1985).............. 7,8, 238

United States v. Addock, 558 F.2d 397 (8th Cir.),

cert. denied, 434 U.S. 921 (1977) .........000222 ee. 20

United States v. Ammar, 714 F.2d 238 (3d Cir.),

cert. denied, 464 U.S. 936 (1983) ..................00020.... 16

United States v. Bell, 573 F.2d 1040 (8th Cir.

RE AC ee rnc Rr Reena ee! Wire oan RS Oe 24

United States v. Billingsley, 474 F.2d 63 (6th Cir.),

cert. denied, 414 U.S. 819 (1978).......................... 20

United States v. Bruscino, 662 F.2d 450 (7th Cir.

1981), cert. denied, 459 U.S. 1211, 1228 (1983).. 22

United States v. Caputo, 758 F.2d 944 (3d Cir.

1985), vacated, 791 F.2d 37 (1986) ........- ee... 17

United States v. Chindawongse, 771 F.2d 840 (4th

Cir. 1985), cert. denied, 106 S. Ct. 859 (1986).... 15

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Cree, 778 F.2d 474 (8th Cir.

TI aii seca sis onscsesss sipissadionacolgs ecto cminceliccrtasen one eat bate 10

United States v. Curcio, 759 F.2d 237 (2d Cir.),

cert. denied, 106 S. Ct. 142 (1985) ....................... 20

United States ex rel. Thomas v. Cuyler, 548 F.2d

I Ce SEE incaiecn tise ccna 11

United States v. DeLuna, 763 F.2d 897 (8th Cir.),

cert. denied, 106 S. Ct. 382 (1985) -...................... 16

United States v. Duhon, 565 F.2d 345 (5th Cir.),

cert. denied, 435 U.S. 952 (1978)......................---- 20

United States v. Haimowitz, 725 F.2d 1561 (11th

Cir.), cert. denied, 105 S. Ct. 563 (1984) -............ 20

United States v. Holmes, 767 F.2d 820 (11th Cir.

Wi sik suscnsasiclaniteaschasts ecscnd tan teipdden te acipiateshmmistccareaon 22

United States v. Hyde, 448 F.2d 815 (5th Cir.

1971), cert. denied, 404 U.S. 1058 (1972) .......... 5, 6, 20

United States v. Inadi, 106 S. Ct. 1121 (1986) ........passim

United States v. James, 590 F.2d 575 (5th Cir.

1979), cert. denied, 442 U.S. 917 (1979) ............ 24

United States v. Keplinger, 776 F.2d 678 (7th Cir.

1985), cert. denied, 106 S. Ct. 2919 (1986) .......... 16

United States v. Love, 534 F.2d 87 (6th Cir. 1976) .. 22

United States v. Molt, 758 F.2d 1198 (7th Cir.

1985), cert. denied, 106 S. Ct. 1458 (1986).......... 16

United States v. Oates, 560 F.2d 45 (2d Cir. 1977) .. 11

United States v. Ordonez, 722 F.2d 530 (9th Cir.

IR ioe ee ce ee 16

United States v. Peacock, 654 F.2d 339 (5th Cir.

1981), modified on other grounds, 686 F.2d 356

(1982), cert. denied, 464 U.S. 965 (1983) _.......... 15

United States v. Perez, 702 F.2d 33 (2d Cir.),

cert. denied, 462 U.S. 1108 (1983)...............---..... 16

United States v. Perry, 512 F.2d 805 (6th Cir.

|. _—__EaP M R pcr onaeeBe OER AED om SE re UE 22

United States v. Tropiano, 418 F.2d 1069 (2d Cir.

1969), cert. denied, 397 U.S. 1021 (1970) -......... 24

United States v. Vinsen, 606 F.2d 149 (6th Cir.

1979), cert. denied, 444 U.S. 1074, 445 U.S. 905

IIE incasic scsuccsbhigh sracbanecesmrestecceancebessbebuesesiod taleliaisceatiaeewbe aii 24

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Williams, 737 F.2d 594 (7th Cir.

1984), cert. denied, 105 S. Ct. 1854 (1985).......... 16

United States v. Wolfe, 766 F.2d 1525 (11th Cir.

1985) (per curiam), cert. denied, 106 S. Ct. 1379

(SRR ean Meat eee | ARR 14

United States v. Young, 736 F.2d 565 (10th Cir.

1984), rev’d on other grounds, 105 S. Ct. 1038

a ee 16

Williams v. Melton, 733 F.2d 1492 (11th Cir.),

cert. denied, 105 S. Ct. 567 (1984)....................-..... 15

STATUTES:

15 te. 6 296 .......... i 2

I CD aici sii cine nencenecnevecsuandaninen 20

SEER aOR See EE SO ae 13

I oo saleaseiewensinboninn 2

I oe, a. ci decade cbeenewchoskanajines scosasby 20, SL, ZB

ERE SERA Eg ma yernte re Peer RDO TER 21

Fed. R. Evid. 801 (d) (2) (E) —............ FPO NSE Dx Le 16

= S|) orn omen 8, 14,17

OTHER AUTHORITIES:

J. Weinstein & M. Berger, Weinstein’s Evidence

SRSA ia en ene eves en Moree SRO Rr eet 22

Wesien, Confrontation and Compulsory Process:

A Unified Theory of Evidence for Criminal

Cases, 91 Harv. L. Rev. 567 (1978) .................... 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No.

DANTE GRASSI & DOMINIC SANTARELLI,

Petitioners,

We

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Dante Grassi and Dominic Santarelli petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 783

F.2d 1572 and reprinted as Appendix A to this petition.

The district court issued no opinion.

JURISDICTION

The judgment of the court of appeals was entered on

March 13, 1986. An order denying defendants’ petition

for rehearing en banc was entered on June 4, 1986 and

is reprinted as Appendix B. An order extending time to

2

file petition for writ of certiorari to September 2, 1986

was signed by Justice Powell on July 3, 1986. The juris-

diction of this Court is invoked under 28 U.S.C. § 1254

(1).

STATEMENT

Petitioners Grassi and Santarelli were convicted of

violating the Hobbs Act, 18 U.S.C. § 1951, by extorting

money from Robert Wilson, Richard Williams, and the

Federal Bank and Trust Company, Ltd. Their convic-

tions were affirmed by the Court of Appeals for the

Eleventh Circuit.

In mid-1978, Wilson and Williams organized a tax

shelter program for United States citizens which involved

the use of off-shore Bahamian corporations and banks.

Although the program purported to create tax shelters

through the purchase and sale of T-bills and Ginny Mae

mortgage instruments by a trader named Charles Tritt,

in fact, Wilson, Williams, and Tritt had no intention of

actually engaging in trading. Instead, they used an

entity in the Bahamas called the Federal Bank and Trust

Company to generate paper transactions to confer an

appearance of legitimacy on the operation.’

Initially, the scheme faitered for lack of funds and the

absence of corporate entities necessary for its operation.

Wilson then turned for help to petitioner Santarelli, a

neighbor of Wilson’s who had loaned Wilson money on

prior occasions. Santarelli loaned Wilson an undisclosed

amount of money and introduced him and Williams to

several people in the Bahamas who helped them to in-

corporate entities to become involved in the tax shelter

operation. One such Bahamian was Clement Pinder.

1 The tax shelter scheme itself was the subject of an independent

criminal proceeding. Pet. App. 2a. At the time of the trial in

this case, Williams had reached a plea agreement with the Govern-

ment concerning his involvement in the tax shelter program, Tr.

vol. 4, at 33-34, and Wilson was awaiting trial concerning his

involvement, Tr. vol. 7, at 136.

3

Through Pinder, Wilson and Williams arranged for a

Bahamian accounting firm to “audit” bogus confirmation

slips, and the three also arranged for an off-shore trust

company to serve as a conduit for the fees for the sale

of fictitious tax losses. Pet. App. 2a.

Charles Tritt testified that in February 1979, peti-

tioner Santarelli had a conversation with Tritt in the

Bahamas in which Santarelli stated that he had loaned

the money to Wilson without interest, and that Santarelli

had told Wilson that when the business was good and

healthy and able to pay its bills they should not forget

Santarelli. According to Tritt’s testimony, Santarelli

also told Tritt, “Well, I guess they’ll come around with a

present one of these days.” Tr. vol. 3, at 58-59.

Tritt also testified that in a subsequent conversation

with Tritt in the Bahamas, Santarelli learned that the

tax shelter scheme was in fact generating a large amount

of cash. Tr. vol. 3, at 64. According to Tritt, Santarelli

also learned that Wilson and Williams had approached

Pinder about establishing a lottery in the Bahamas. Tritt

testified that Santarelli became upset that Wilson and

Williams had contacted Pinder about a separate venture

without first consulting him. Pet. App. 2a.

Richard Williams testified that, shortly thereafter,

petitioner Grassi, who also lived near Wilson, telephoned

Wilson and told him to come to his apartment and to

bring Williams. According to Williams’ testimony, Grassi

told Wilson and Williams that Santarelli was upset about

their attempt to establish a lottery program through

Santareili’s Bahamian contacts without telling him. Wil-

liams further testified that he told Grassi the money

borrowed from Santarelli by Wilson had been repaid with

interest, and that he felt no need to consult him. Accord-

ing to Williams, Grassi then slapped Williams twice and

stated, “You got to show respect.” Wilson stepped be-

tween the two men, stating that Williams should leave

4

matters to him and that they would meet with Santarelli

in the Bahamas two days later. Pet. App. 3a.

Williams further testified that he and Wilson flew to

the Bahamas two days later to meet with Santarelli.’

Williams testified that Santarelli explained that Wilson

and Williams should have consulted him before they

approached his friend Pinder about the lottery venture.

According to Williams, Santarelli stated that they “had

made him look like a fool with his people in the Bahamas,

and that he was going to take a piece of the Bank.” At

that point, Williams asked if Santarelli was taking five

percent of the tax shelter scheme. Santarelli jabbed his

finger into Williams’ chest and said, “No. I’m taking

one-third.” Williams then began to argue, at which point

Wilson again intervened and took him into the next room.

Wililams testified that, out of the presence of Santa-

relli and Grassi, the following conversation took place

between himself and Wilson:

Q. State what was said sir.

A. Well, Bob took me into the other room and said,

“Look, let me handle this.”

I said, “Bob, what are you talking about? You’re

talking about somebody taking a whole one-third of

the bank,” and I said, “We’re going [sic] all the

work.”

I said, “You know, it just doesn’t seem fair to me.”

He said, “Look you know, they were there when we

wanted them. I got my money when I needed it.

They helped us with the people that needed to be

got at in Nassau, set up the trust company and

everything else.”

He said, “Let me handle it. Let me work it out.”

I said, “Well, I think that a third is just too much.”

2 Grassi was present during the meeting but did not participate

in the discussions.

5

I said, “You know, okay, maybe for that we ought

to give away, maybe, ten percent, I don’t know, but

a third sounds like one hell of a lot to me.”

So, he said, “Well, look, I don’t know about you, but

I got kids and I don’t intend to argue.”

So, he said, “I’—he said, “You don’t argue with

people like this. If they say they want a third,

they’re going to take a third and what the hell are

you going to do about it.”

So, I didn’t do anything about it.

Q. What did you say?

A. I said, “Well, if you really think that’s true,

then I guess I’ve got to go along with what you say.”

Pet. App. 4a, 5a.

Wililams testified that he and Wilson returned to the

room and told Santarelli that they agreed to his having

a one-third share of the bank. Williams further testified

that in early 1980, he caused approximately 1.4 million

dollars te be transferred into a Bahamian corporation

owned and controlled by Santarelli as payment of his

share of the program’s 1979 profits. Pet. App. 5a.

At trial, counsel for defendants objected strenuously to

the admission of out-of-court statements by Wilson and

others describing defendant as “underworld” and “Mafia”

and as people “you don’t argue with.” Pet. App. lla.

The trial court, relying on United States v. Hyde, 448

F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058

(1972), overruled these objections on the ground that the

testimony was admissible to show the victims’ fearful

state of mind. Pet. App. 12a, 19a-21a.

On appeal to the Eleventh Circuit, petitioners’ urged,

inter alia, that their Sixth Amendment confrontation

rights were denied because of the Government’s reliance

m hearsay testimony to elicit evidence of the defendants’

alleged organized crime connections as well as of alleged

fear of the defendants by the victims. In addition, peti-

6

tioners urged that, regardless of the manner by which it

was introduced, the district court erred in admitting evi-

dence of petitioners’ alleged ties to organized crime under

Fed. R. Evid. 403. The court of appeals concluded, how-

ever, that petitioners’ confrontation rights were not

denied by the admission by way of Williams of Wilson’s

out-of-court statements concerning the defendants’ repu-

tation and Wilson’s fear of them. Relying heavily on

United States v. Hyde, supra, the court concluded that

Wilson’s statements concerning his fear of petitioners

were admitted as evidence of his state of mind, and not

for their truth, and thus were exceptions to the hearsay

rule. “The defendants’ right of cross examination,” the

court quoted from Hyde, “is preserved in that he can ask

the witness whether he truly heard these fear-producing

statements.” Pet. App. 18a. The court also asserted that

any problems inherent in the admission of Wilson’s state-

ments through Williams’ testimony was cured by the fact

that Wilson had been granted immunity to testify and

could have been called by the defendants as a witness.

Pet. App. 18a. Finally, the court rejected petitioners’

contention that this evidence should have been excluded

under F. R. Evid. 403 because its probative value was

substantially outweighed by the danger of unfair prej-

udice. The court stated that Rule 403 “is an extraordi-

nary remedy to be used sparingly” and concluded that the

trial court did not abuse its discretion in refusing to ex-

clude the Mafia reputation evidence. Pet. App. 14a-15a.

REASONS FOR GRANTING THE WRIT

The Government’s presentation in this case of hearsay

testimony linking the defendants to the “underworld”

and the “Mafia” raises several questions warranting re-

view. First is the question whether the introduction of

this evidence through hearsay testimony conflicted with

petitioners’ Sixth Amendment right to confront their ac-

cusers. Although the Eleventh Circuit rejected petition-

T

ers’ Confrontation Clause claim, its stated reasons were

not only unconvincing but are irreconcilable with con-

trolling precedents in other circuits. These conflicts—

which persist in the wake of this Court’s rulings last

Term in United States v. Inadi, 106 S. Ct. 1121 (1986),

and Lee v. Illinois, 106 S. Ct. 2056 (1986)—require reso-

lution by this Court.

Second, wholly apart from the manner in which this

testimony was introduced, the prosecution’s use of preju-

dicial reputation evidence exemplifies a general pattern

of unfairness in Hobbs Act prosecutions. In such cases,

the lower courts routinely allow prosecutors to link de-

fendants to organized crime without undertaking any

kind of serious analysis of the probative value of this

evidence in the context of a giver case. Here again, the

lower courts are plainly in need of further guidance from

this Court.

I. Introduction of Hearsay Testimony to Establish the

Subjective Fear of the Alleged Victims Denied Peti-

tioners Their Rights Under the Confrontation Clause

of the Sixth Amendment

The Confrontation Clause is implicated in this case

because (1) the Government introduced the out-of-court

statements of a declarant, Wilson, who was never called

to the stand as a witness, and (2) those statements were

introduced for a “hearsay” purpose—i.e., to prove the

truth of what was asserted.* In essence, the prosecution

3 The “ ‘hearsay rules and the Confrontation Clause are generally

designed to protect similar values,’ and ‘stem from the same roots.’ ”

Ohio v. Roberts, 448 U.S. 56, 66 (1980) (quoting California v.

Green, 399 U.S. 149, 155 (1970), and Dutton v. Evans, 400 U.S. 74,

86 (1970)). At bottom, the goal is preserving the right to cross-

examine adverse witnesses in those cases where a cross-examination

can play a useful role in improving the accuracy of the trial process.

See Tennessee v. Street, 105 S. Ct. 2078, 2082 (1985); Douglas v.

Alabama, 380 U.S. 415, 418 (1965). Introduction of hearsay can

undermine this goal when important facts are established through

the statement of a declarant who is not subject to cross-examination.

8

sought to prove Wilson’s fear of the defendants by ask-

ing another witness, Williams, to quote Wilson’s con-

temporaneous descriptions of his own state of mind.‘

Wilson, in turn, was never called to defend or explain the

basis or meaning of his statements.

In such a case, since the defendant is not given a

chance to cross-examine one of his “accusers,” the pros-

ecution must make a sufficient showing to justify a re-

laxation of the usual right of confrontation.® In the

typical case, this showing consists of proving two essen-

tial predicates. First, the hearsay statement must bear

sufficient “ ‘indicia of reliability’” to satisfy the court

that cross-examination is not essential. Ohio v. Roberts, .

4 Both the district court, Pet. App. 12a, and the court of appeals,

Pet. App. 13a, recognized that these statements were introduced,

in part, to show the truth of what Wilson was saying about his own

fear. Although Wilson was not quoted as saying “I’m afraid of

Santarelli,” his out-of-court statements were functionally equiv-

alent to such an assertion. See, e.g., Pet. App. 4a (“I don’t know

about you, but I got kids and I don’t intend to argue.’”’) The fact

that Wilson’s characterizations were, to this extent, less than ex-

plicit, does not alter their character as hearsay.

The court below, in ruling on this issue, appears to have been

somewhat confused about the distinction between statements that

are “non-hearsay” and statements that are hearsay but are never-

theless admissible under an exception in the hearsay rule. It did,

however, indicate that the evidence here fell into the latter cate-

gory by approving its admission under Fed. R. Evid. 803 (3)—which

allows admission of hearsay descriptions of a person’s existing

mental, emotional or physical condition. Any confusion on this

score probably resulted from the fact Wilson’s statements were

simultaneously used for the non-hearsay purpose of showing the

state of mind they produced in Williams when he heard them.

5 We note that this case, involving hearsay evidence, is funda-

mentally different from the situation presented in Tennessee v.

Street, supra, where the Court approved use of an out-of-court

statement to show something other than the truth of the statement

itself. In such a case, Sixth Amendment concerns are minimal,

because cross-examination of the declarant would serve no purpose.

9

448 U.S. 56, 66 (1980) (quoting Mancusi v. Stubbs, 408

U.S. 204, 213 (1972))}. Second, with some types of hear-

say, the Government must also be able to justify the

need to resort to hearsay by demonstrating that the

declarant is not available to appear as a witness. Jbid.;

cf. United States v. Inadi, supra (holding that the un-

availability requirement does not apply to statements

admitted under the exception for co-conspirator declara-

tions).

In the present case, however, the Eleventh Circuit

eschewed this familiar analysis. Instead, it concluded

that the petitioners’ claims did not even raise an issue

under the Confrontation Clause. First, the court held

that the Sixth Amendment issues that would otherwise

be generated by the prosecution’s reliance on the hearsay

statements of a non-appearing declarant are eliminated

if the defendant could have called the declarant as his

own witness. Because Wilson had been granted immunity

and thus could have been called as a witness by the

defense, the court ruled that the defendants’ opportunity

to “confront” their accuser as their own witness was

equivalent to the appearance of the declarant as a prose-

cution witness subject to cross-examination. In addition,

the court relied on the fact that the statements at issue

here were admissible under an exception to the hearsay

rule, thus suggesting that admissibility under the Fed-

eral Rules of Evidence is sufficient, on its own, to fore-

close further constitutional challenges to hearsay evi-

dence. Neither of these justifications is defensible on its

own merits or consistent with the prevailing rules in

other circuits.

A. The Relevance of the Declarant’s Availability as a

Defense Witness

Perhaps the most serious error made below is the

court’s ruling that mere availability of a declarant as a

defense witness is equivalent to an opportunity to cross-

examine that declarant during the prosecution’s case at

er

10

the time the hearsay statement is introduced. Such a rule

would, in effect, not only allow prosecutors to avoid pro- |

ducing declarants for cross-examination, but would also |

relieve them completely of the threshold showings of reli- |

ability and unavailability mandated in Ohio v. Roberts,

supra, simply by pointing to a defendant’s ability to

subpoena the same witness himself. Left undisturbed,

this ruling would significantly undermine the value of the

Sixth Amendment as a protection against prosecutorial

reliance on hearsay evidence.

It is true, of course, that Confrontation Clause issues

cease to exist in any case where the prosecution presents

hearsay evidence and then produces the declarant for

cross-examination. See California v. Green, 399 USS.

149 (1970) (approving introduction into evidence of prior

inconsistent statement by government witness). In such

a case, the declarant’s appearance as a prosecution wit-

ness provides the defense ample opportunity to “con-

front” him and challenge the meaning and basis of his

prior statement.

But it would be quite another thing to hold that all

Sixth Amendment concerns involving hearsay evidence

are allayed whenever the defendant could, much later in

the course of the trial, call the declarant himself. And

although such a rule finds some support in Justice Black-

mun’s dissenting opinion last term in Lee v. Illinois, su-

pra, 106 S. Ct. at 2067 n. 3, and has been endorsed by

one other circuit, United States v. Cree, 778 F.2d 474

(8th Cir. 1985),° it has been rejected by at least three

others. These courts have correctly recognized that, in

cases where a right of cross-examination is mandated by

®In Cree, the Eighth Circuit refused to reach the merits of a

confrontation claim, holding that the defendant had waived any

such claim by failing to call an available declarant as his own

witness. The dissenting opinion disputed vigorously the notion

that confrontation rights turn on the availability of the declarant

as a defense witness. 778 F.2d at 488-87 (Oliver, J., sitting by

designation).

11

the Confrontation Clause, the defendant’s opportunity

later to call the declarant as a defense witness is not a

sufficient substi:ute. See United States v. Oates, 560 F.2d

45, 82 n. 39 (2d Cir. 1977) (“the disadvantage the de-

fendant suffers because of the prosecutor’s failure to call

the extra-judicial declarant is not ameliorated by the de-

fendant’s ability to cali the extra-judicial declarant as his

own witness”); United States ex rel. Thomas v. Cuyler,

548 F.2d 460, 463 (3d Cir. 1977) (‘‘a witness whose prior

statement is to be used must not only be produced but

must also be sworn and made available for cross-examina-

tion’) ; Simmons v. United States, 440 F.2d 890, 891 (7th

Cir. 1971) .?

The reasons for rejecting the Eleventh Circuit’s rule

are several. First, the rule would render almost mean-

ingless the requirement recognized in Ohio v. Roberts of

a showing of the declarant’s unavailability in instances

where that requirement still applies after Inadi.* In most

cases, the Government could simply introduce the hearsay

statement of a non-appearing declarant, secure in the

knowledge that this declarant must either be unavailable

7 As the Seventh Circuit stated in Simmons, “where an extra-

judicial declaration is used under circumstances such that the

opportunity to cross-examine the declarant is essential to a de-

fendant’s right of confrontation,” the prosecutor must “produce

the declarant” for cross-examination. 440 F.2d at 891. “Mere

availability, in the sense that defendant could have subpoenaed

him, does not, in our opinion, suffice.” Ibid. (emphasis added) ;

see also Park v. Huff, 493 F.2d 923, 934 (5th Cir. 1974), rev’d

on other grounds, 506 F.2d 849 (en banc), cert. denied, 423 U.S.

824 (1975); Hoover v. Beto, 439 F.2d 918, 924 (5th Cir. 1971),

rev'd on other grounds, 467 F.2d 516 (en banc), cert. denied, 409

U.S. 1086 (1972).

8 As noted above, this Court in Inadi, supra, 106 S. Ct. at 1126,

limited the scope of the unavailability requirement, but reaffirmed

the applicability of such a rule in the context of prosecutorial use

of prior testimony by non-appearing declarants. See also note 9,

infra.

12

(thus satisfying Roberts) or available to the prosecution

and defense alike (thus eliminating any confrontation

issues).

Just as important, the rule would also dispense with

the Roberts requirement of reliability on the funda-

mentally unsound premise that a defendant’s right to

call a hearsay declarant as his own witness is comparable

to the right of immediate confrontation through cross-

examination. Some of the differences between the two

procedures were discussed last Term, in a somewhat dif-

ferent context, by the dissenters in Jnadi.® To begin with,

of course, where the defendant’s confrontation of his

accuser is delayed until after the close of the prosecu-

tion’s case, the value of the confrontation will be di-

minished. During the intervening period, “the declara-

tions will be unrebutted in jurors’ minds,” 106 S. Ct. at

1134 (Marshall, J., dissenting). The defendant’s rebuttal

of those declarations—which may not take place for days

or even weeks after the initial testimony—may simply

come too late.

® Nothing in the majority opinion in Jnadi constitutes a rejection

of these concerns. The case involved the introduction of hearsay

statements by a co-conspirator who did not appear at trial but was

available to appear. The Court held that this type of hearsay,

unlike the prior testimony at issue in Ohio v. Roberts, may be used

at trial without a showing that the declarant is unavailable as a

witness. 106 S. Ct. 1129. In so doing, it noted that the defense

could have called the witness. /d. at 1127-28. The Court did

not suggest, however, that the availability of the declarant as a

defense witness would eliminate the remaining requirement recog-

nized in Roberts—.e., the requirement of a showing of reliability

for statements of declarants who do not appear as prosecution wit-

nesses. On the contrary, the Court stated that the “reliability of

the out-of-court statements is not at issue in this case.” Jd. at

1124 n.3. And the dissenters stated without contradiction that

the respondent was “free to return to the Court of Appeals and

argue that the co-conspirator declarations admitted against him lack

the ‘indicia of reliability’ demanded by the Confrontation Clause.”

Id. at 1129 ‘Marshall, J., dissenting).

13

At the same time, it is clear that examinations of

hostile witnesses undertaken during the defense case en-

tail greater risks to defendants than cross-examinations

of prosecution witnesses. First, there is always the risk

that the jury will misunderstand the relationship between

the defendant and the witness. Thus, the jury may

mistakenly believe that the witness has been called to

help the defense case, thus “bolstering in the jury’s eyes

the very conspiracy allegations [that the defendant]

wishes to rebut.” Jbid. In addition, defense counsel must

be concerned that, by bringing up a particular statement

a second time, much later in the trial, they may simply

enhance the impact of the declarant’s original statement.

See ibid.

Because of these various considerations, it is unlikely

that a defendant will even attempt to call as a witness the

declarant of hearsay introduced by the prosecution, ex-

cept in those rare cases where he knows that the witness

will recant his former statement or he has concrete

evidence to use for impeachment.” Yet in federal prose-

cutions at least, the defense is unlikely even to have the

necessary information to challenge the witness, precisely

because the declarant never appeared as a prosecution

witness and his prior statements therefore need not have

been produced. See ibid. (citing 18 U.S.C. § 3500). In-

deed, there is a very real danger that—recognizing these

advantages—prosecutors will exploit this rule by choos-

ing to present the statements of their most unreliable

witnesses only through hearsay evidence, rather than call-

ing those witnesses to the stand themselves. In such a

ease, unless the defense happens to be aware of the

declarant’s unreliability, it is unlikely to call the prose-

10 By contrast, an effective cross-examination of a prosecution

witness need not be based on such knowledge or evidence. It may

simply suggest to the jury an alternative understanding of the

facts that counsel has no substantial evidence to support, or it

may seek to discredit the witness generally without focusing on

the specific evidence at issue.

14

cutor’s bluff by subpoenaing the declarant as a defense

witness. See Westen, Confrontation and Compulsory

Process: A Unified Theory of Evidence for Criminal

Cases, 91 Harv. L. Rev. 567, 577-79, 623 & n.155 (1978).

For all of these reasons, “‘[o]nly a lawyer without

trial experience would suggest that the limited right to

impeach one’s own witness is the equivalent of that right

to immediate cross-examination which has always been

regarded as the greatest safeguard of American trial pro-

cedure.’ ”’ Inadi, supra, 106 S. Ct. at 1184 (Marshall, J.,

dissenting) (quoting New York Life Insurance Co. v.

Taylor, 147 F.2d 297, 305 (D.C. Cir. 1945)). Thus, as

three circuits have held, the Government should in fair-

ness not be able to sidestep both requirements, satisfying

the Sixth Amendment and avoiding the Roberts showing

simply by pointing to the availability of the declarant as

a witness for the defense. Instead, where the prosecution

seeks to rely on hearsay evidence, it should have only

two choices: (1) produce the declarant for cross-examina-

tion at the time the statement is introduced, or (2)

satisfy the standards for introduction of statements by

non-appearing declarants that are established in Ohio v.

Roberts.

B. The Significance of Admissibility Under An Excep-

tion to the Hearsay Rule

In addition to relying on the availability of Wilson as

a defense witness, the Eleventh Circuit also rejected peti-

tioners’ Confrontation Clause claim on the basis of the

fact that Wilson’s statements were admissible under the

hearsay rule, specifically Fed. R. Evid. 803(3), covering

descriptions of “existing mental, emotional or physical

condition.” Pet. App. 12a, This fact, the court appar-

ently believed, was sufficient to end any further inquiry

under Ohio v. Roberts into the reliability of the hearsay

statements.

In so ruling, the court below was true to the latest

precedent in the Eleventh Circuit, United States v. Wolfe,

15

766 F.2d 1525, 1527 (11th Cir. 1985) (per curiam), cert.

denied, 106 S. Ct. 1879 (1986)," as well as the prevail-

ing rule in four other circuits, Ottomano v. United States,

468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409

U.S. 1128 (1973); United States v. Chindawongse, 771

F.2d 840, 847 (4th Cir. 1985), cert. denied, 106 S. Ct.

859 (1986) ; United States v. Peacock, 654 F.2d 339, 349

(5th Cir. 1981), modified on other grounds, 686 F.2d 356

(1982), cert. denied, 464 U.S. 965 (1983); Boone v.

Marshall, 760 F.2d 117, 119 (6th Cir. 1985), where

admissible hearsay is automatically deemed “reliable,”

based in large part on this Court’s comment in Roberts

that “[rleliability can be inferred without more in a

case where the evidence falls within a firmly rooted

hearsay exception.” 448 U.S. at 66.

Just last Term, however, four members of this Court

took a different approach. Justice Blackmun, dissenting

for himself and three other Justices in Lee v. Illinois,

supra, argued that the codefendant’s confession at issue

there fell within the “firmly established” hearsay excep-

tion for “declarations against interest.” 106 S. Ct. at

2068. Far from suggesting that this ended the constitu-

tional inquiry, however, the dissenters recognized that

“the requirements of the Confrontation Clause and the

hearsay rule often diverge.” Jbid. Admissibility under

the rules of evidence, while significant, is but one of the

factors to be weighed in the constitutional analysis.

Ibid.”

11 We note that an earlier decision in the Eleventh Circuit, in-

volving a state law res gestae hearsay exception, went the other

way. In Williams v. Melton, 733 F.2d 1492, 1495 (11th Cir.), cert.

denied, 105 S. Ct. 567 (1984), the court held that hearsay ad-

missible under this exception does not automatically satisfy the

Confrontation Clause. It undertook its own examination of the

reliability of the statements at issue.

12 The majority in Lee did not reach this issue because it dia not

consider the statement as falling within a firmly rooted exception

to the hearsay rule. Jd. at 2064 & n.5. Nevertheless, the majority

16

The emerging rule suggested by Lee is supported by

five circuits that have rejected a conclusive presumption

of reliability based on the applicability of a hearsay ex-

ception.4* United States v. Perez, 702 F.2d 33, 37 (2d

Cir.), cert. denied, 462 U.S. 1108 (1983); United States

v. Ammar, 714 F.2d 288, 254-57 (3d Cir.), cert. denied,

464 U.S. 986 (1983) ; United States v. DeLuna, 763 F.2d

897 (8th Cir.), cert. denied, 106 S. Ct. 382 (1985);

United States v. Ordonez, 722 F.2d 530, 535 (9th Cir.

1983) ; United States v. Young, 736 F.2d 565, 569 (10th

Cir. 1984), rev’d on other grounds, 105 S. Ct. 1038

(1985).%* Thus, if petitioners had been tried in one of

also recognized the possibility that hearsay could be admissible

under rules of evidence yet run afoul of the Confrontation Clause.

Id. at 2061.

13 The existence of this conflict among the circuits has been twice

recognized by members of this Court. See United States v. Inadi,

supra, 106 S. Ct. at 1129 n.1 (Marshall, J., dissenting); Sanson

v. United States, 467 U.S. 1264 (1984) (White, J., dissenting from

denial of writ of certiorari).

14 The final circuit that has spoken on this issue, the Seventh,

appears to be completely confused. Compare United States v.

Keplinger, 776 F.2d 678, 695 (7th Cir. 1985), cert. denied, 106

S. Ct. 2919 (1986) (admissibly under hearsay rules “does not

eliminate the need to evaluate whether admission of the statement

contravenes the defendant’s right of confrontation’), and Mattes v.

Gagnon, 700 F.2d 1996, 1101 (7th Cir. 1983) (same), with United

States v. Molt, 758 F.2d 1198, 1199 (7th Cir. 1985), cert. denied,

106 S. Ct. 1458 (1986) (admissibility under hearsay rules disposes

of Sixth Amendment claim), and United States v. Williams, 737

F.2d 594, 610 (7th Cir. 1984), cert. denied, 105 S. Ct. 1854 (1985)

(same).

We note that most of the cases cited here involve the co-

conspirator hearsay rule in Fed. R. Evid. 801(d)(2)(E). Tech-

nically speaking, that rule treats the statements of co-conspirators

made in furtherance of the conspiracy as “non-hearsay” rather

than an exception to the hearsay rule. However, because co-

conspirator statements are hearsay in every practical sense, they

are treated as an exception to the hearsay rule for purposes of

analysis under the Confrontation Clause. See United States v.

17

these circuits, they would have had at least the oppor-

tunity to challenge the reliability of admitting Wilson’s

statements linking them to organized crime through

Williams and Tritt. The opportunity denied to peti-

tioners Grassi and Santarelli in the Eleventh Circuit

was by no means a technical or inconsequentia! short-

coming. After all, admissibility under the general hear-

say roles is hardly a guarantee of reliability ta every

particular case. As a result, there is a real danger that,

whenever a statement fits within a hearsay exception,

the Government will seek to use essentially unreliable

and inflammatory evidence against a defendant, knowing

that he will not be able to undermine its effect on the

jury because the declarant will not be there to be cross-

examined.

This danger is vastly increased, of course, in those

areas where the requirement of unavailability does not

apply. In these circumstances, the prosecution may have

full access to and control over the declarant, and may

know that he would no longer affirm the truth of some

key comment he had formerly made if put to the test

of live examination. Absent some requirement to prove

the reliability of the hearsay, however, the Government

would be free to introduce this questionable testimony

as hearsay through another witness, secure in the knowl-

edge that the defense is unlikely to risk summoning the

declarant as its own witness.

Inadi, supra, 106 S. Ct. at 1128 n.12; United States v. Caputo,

758 F.2d 944, 951 (3d Cir. 1985), vacated, 791 F.2d 37 (1986).

15 Arguably, he would also have been able to rely on the Roberts

requirement that the government show the unavailability of the

declarant—depending on how broadly one reads the decision in

Inadi. In Inadi, the Court did not reach the question whether

unavailability should be required where statements are being

introduced as descriptions of present mental state under Fed. R.

Evid. 803(3). It ruled solely on the issue of co-conspirator hearsay

declarations. To the extent that unavailability is required in the

present context, it is undisputed that the Government failed to meet

this requirement.

18

The facts of this case illustrate these dangers well.

First, there is ample reason for concern that Wilson

may have fabricated a link between petitioners and the

Mafia in order to induce Williams to acquiese in peti-

tioner Santarelli’s request for a percentage of their en-

terprise. This concern is underscored by the Government’s

deliberate decision to offer these statements only through

another witness, Williams, who could not even be chal-

lenged about whether Wilson truly believed the allega-

tions, much less whether they were true.

Wilson’s possible motive for fabrication stems from

the fact that Santarelli’s initial involvement in the tax-

shelter scheme was through a loan to Wilson, for Wil-

son’s own investment in the scheme. Although Williams

understood that his partner had repaid this loan with

interest, Tr. vol. 4, at 123, other statements in the record

suggest a different scenario: that Santarelli had offered

a no-interest loan, as well as introductions to key figures

in the Bahamas that were to be repaid with a percent-

age of the enterprise itself. According to Tritt, San-

tarelli had told Wilson that when the business “got good

and healthy, and they were able to pay their bills” they

should not forget “Uncle Dom.” Tr. vol. 4, at 1238.

Williams, however, testified at trial that he did not

know the terms of the arrangement between Santarelli

and Wilson, and that he had expressly told Wiison to

keep him out of any such arrangements. Tr. vol. 4, at

91, vol. 5, at 6, 7. As a result, if Wilson in fact made

a commitment to give Santarelli a percentage, as the

evidence suggests, or felt that this result was fair in

light of the success of the enterprise, he would have had

to find some way to cajole Williams into agreeing to the

arrangement. Indeed, the record suggests that Wilson

tried two alternative approaches concurrently. First,

Wilson argued the equities, telling Williams, in the key

16In his testimony, Tritt quoted petitioner Santarelli as saying

that the loan carried no interest. Tr. vol. 3, at 58, 59.

19

conversation: “Look you know, they were there when

we needed them. I got my money when I needed it. They

helped us with the people that needed to be got at in

Nassau, set up a trust company and everything else.”

Pet. App. 4a. Only after this avenue was rebuffed did

he attempt to depict petitioners as threatening under-

world figures who could not be denied. Quite obviously,

if the second approach fairly portrayed his true state

of mind, the first was beside the point.

All of this could have been explored effectively on cross-

examination if the Government had put Wilson on the

stand to describe his own fears of petitioner and their

source. But since Williams was the only witness, no such

examination was possible. In such circumstances, there

was clear reason to doubt the reliability of the hearsay

testimony. And, as we have suggested, these doubts are

magnified by the fact that Wilson was fully available to

be called as a Government witness. Wilson thus could

have explained his own motives in detail, without raising

any possible Confrontation Clause issue. Yet the prosecu-

tion chose not to call Wilson, preferring to introduce his

hearsay statements through another witness who was

effectively immune from the rigors of cross-examination

on these issues.

In sum, the fact that the Eleventh Circuit, unlike five

other circuits, conclusively presumes reliability from ad-

missibility under the hearsay rules, was hardly irrelevant

on the facts of this case. This is an issue that should

be resolved by this Court.

II. The Court Admitted the Evidence Linking Petitioners

with Organized Crime Without Undertaking the Full

Weighing of Probative Value and Prejudicial Effect

Mandated by the Federal Rules of Evidence

The second set of issues raised in this case involves

the proper use of reputation evidence in prosecutions

under the Hobbs Act. The Government’s use of testi-

20

mony linking the defendants to organized crime is typical

of prosecutions under this statute. The courts routinely

admit such evidence, without undertaking any serious

inquiry into whether its probative value in the particu-

lar circumstances of the case outweighs the clear possi-

bilities for unfair prejudice. This is a pattern that must

be corrected.

“Extortion” under the Hobbs Act has two related ele-

ments: subjective fear of harm on the part of the al-

leged victim, and an effort to exploit that fear by the

defendant.’7 When the Government seeks to introduce

testimony about what the victim said or heard about the

defendant, the courts focus on the former issue and typi-

cally conclude that the reputation evidence is relevant to

show the “state of mind” of the victim. See, e.g., United

States v. Curcio, 759 F.2d 237, 241 (2d Cir.), cert. de-

nied, 106 8S. Ct. 142 (1985); United States v. Adcock,

558 F.2d 397, 404 (8th Cir.), cert. denied, 434 U.S. 921

(1977); United States v. Billingsley, 474 F.2d 638, 66

(6th Cir.), cert. denied, 414 U.S. 819 (1973); United

States v. Hyde, supra, 448 F.2d at 845. While this is

true as far as it goes, mere relevance, by itself, is not

sufficient to justify admission of this kind of highly in-

flammatory testimony. In the first place, there must, of

course, be some evidence linking the victim’s fear to some

action or reliance by the defendant. Additionally, under

Fed. R. Evid. 403, the probative value of the evidence

must be weighed against its potential prejudicial effects

in the context of a given case. In effect, in Hobbs Act

cases, the courts have abandoned the careful weighing

17 United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir.),

cert. denied, 105 S. Ct. 563 (1984); United States v. Duhon, 565

F.2d 345, 351 (5th Cir.), cert. denied, 435 U.S. 952 (1978). The

statute defines extortion as “obtaining of property from another,

with his consent, induced by wrongful use of actual or threatened

force, violence, or fear, or under color of official right.” 18 U.S.C.

§ 1951 (b) (2).

21

required by Rule 403, and replaced it with a virtually con-

clusive presumption that every negative statement about

the defendant that was made or heard by the victim,

however inflammatory or unreliable, is admissible into

evidence to show state of mind.

The circumstances of the present case illustrate this

problem. In its ruling from the bench, the district court

focused almost exclusively on the admissibility of the or-

ganized crime allegations under the hearsay rules. Pet.

App. 19a-21la. Its ruling under Rule 403 was confined

to a single sentence, which offered no analysis whatever

of the actual facts and circumstances of the case.’* Nor

had the Government, in its arguments for admitting the

statements, offered any explanation of why this evidence

was so essential that its probative value outweighed any

potential prejudice. The Eleventh Circuit, in turn, gave

only the most cursory attention to petitioners’ Rule 403

claim. Pet. App. 14a-15a.

There are two reasons for concern about this pro forma

approach to the Rule 403 issue in Hobbs Act cases. The

first stems from the nature of the evidence involved.

When the Government seeks to rely, in an extortion case,

on statements made or heard by the victim that demon-

strate his fear of the defendant, those statement generally

will entail a high degree of potential prejudice. Under

our system of criminal justice, it has long been considered

highly prejudicial to seek to prove a defendants’ guilt

by pointing to his character, reputation or prior conduct.

See Fed. R. Evid. 404. Yet in Hobbs Act cases, because

Congress made the victim’s “state of mind” an element

of the crime, juries are allowed to hear all sorts of alle-

gations of this kind, including perhaps the most preju-

18 The court simply stated that “I have also applied Rule 403 and

weighed the relative affects on both the defendants and the Gov-

ernment, and I do feel that in view of the difficulty in proving a

state of mind, which is an essential element here, that it is ueces-

sary for the Government’s case.” Pet. App. 21a.

22

dicial possible form of character evidence—an allegation

of organized crime involvement.’®

These general concerns are greatly enhanced when one

looks to the nature of the specific issues presented to the

jury in a Hobbs Act case. As we have noted, there are

two elements of Hobbs Act extortion—subjective fear and

an effort to exploit that fear. These elements are closely

related, since the same conduct on the part of the de-

fendant may be innocent or extortionate depending on the

information the alleged victim had in his mind and how

he was likely to react. The risk is that a finding of sub-

jective fear will, in certain circumstances, be unfairly

“bootstrapped” into a finding of extortionate conduct on

the part of the defendant. This may occur where (1) the

prosecution seeks to prove the state of mind of the alleged

victim by introducing statements he made or heard, and

(2) those statements reflect the victim’s knowledge of

specific facts that the defendant neither communicated to

him nor had reason to expect him to learn about. In such

a case, there is a danger that jury will “read” the de-

fendant’s conduct in light of the information that the

18 Numerous courts have recognized that a suggestion of a link

between a defendant and organized crime creates a grave danger

of tainting a jury’s consideration of the case. United States v.

Bruscino, 662 F.2d 450, 458-59 (7th Cir. 1981), cert. denied, 459

U.S. 1211, 1228 (1983) (conviction reversed where jury accidentally

saw unadmitted exhibit linking defendant to “Mexican mafia’’) ;

United States v. Love, 534 F.2d 87, 89 (6th Cir. 1976) (conviction

reversed where prosecutor suggested Mafia link in questioning) ;

United States v. Perry, 512 F.2d 805, 806-07 (6th Cir. 1975)

(plainly prejudicial for prosecutor to ask defendant whether he was

member of “Dixie Mafia”) ; United States v. Holmes, 767 F.2d 820,

824 (llth Cir. 1985) (improper and potentially prejudicial to

elicit testimony linking defendant with Mafia). See generally J.

Weinstein & M. Berger, Weinstein’s Evidence { 403[03], at 403-40

to -41 (1985) (“Particular difficulties arise where the proffered

evidence connects a party with a highly charged public issue, such

as communism, organized crime, or narcotics.’”’) (citations omitted;

emphasis added).

23

victim had received, and blame the defendant for “ex-

ploiting’ a fear ‘hat the defendant had no way of

knowing about.

In this case, for example, the only conduct attributed

to petitioner and his co-defendant was reasonably am-

biguous. It could have been interpreted as coercive, but

Williams himself testified that this conduct had not

caused him to fear the defendants or want to give them

any money. Tr. vol. 5, at 37-41. The key event was the

fact that the alleged victims somewhere received the

impression that the defendants were involved with the

Mafia. Because of this information, Wilson, and ulti-

mately Williams as well, understood petitioner Santa-

relli’s request for a share in their operations as a demand

that they could not safely refuse. Yet as far as the

record reveals, Santarelli had no knowledge whatever

that he was perceived as a member of organized crime

by Williams and Wilson. As a result, there is real reason

for concern here that the fear generated in the minds of

the alleged victims by third-party comments was what

led the jury to “interpret” the defendants’ conduct as

extortionate.” If so, then the hearsay evidence intro-

duced solely to show the state of mind of the alleged

victims became the determining factor on the overall

issue of the defendants’ guilt or innocence.

In light of these concerns, it is clear that courts should

be far more vigilant than they have been in the past in

scrutinizing the probative value and prejudicial effects

of reputation evidence in Hobbs Act cases. Such evidence,

of course, is quite appropriate where the Government

2°The court instructed the jury that the statements about

organized crimes were only to be considered to show the victims’

state of mind. Pet. App. 22a. Although there is a general assump-

tion “that jurors are able to follow the court’s instructions,”

Tennessee v. Street, supra, 105 S. Ct. at 2082 n.6, Rule 403 would

hardly be necessary if the prejudicial effects of evidence would

always be purged by instructions to the jury.

24

can show evidence that the defendants, or their agents,

“brought home” to the victim of their own propensity

toward violence. See United States v. Tropiano, 418 F.2d

1069, 1081 (2d Cir. 1969), cert. denied, 397 U.S, 1021

(1970). And the same is true where a particular defend-

ant has such a general reputation for criminality that

he had reason to anticipate that the victims would in-

terpret his statements and actions in that light. See

Carbo v. United States, 314 F.2d 718, 740-41 (9th Cir.

1963), cert. denied, 877 U.S. 953 (1964).

But where, as here, the Government does not show that

the allegations about the defendant received by the victim

were known to the defendant, it should not be able to

introduce those allegations simply by arguing their rele-

vance as indications of the victim’s state of mind. At

minimum, there should be some preliminary showing that

defendants affirmatively advised or relied upon the repu-

tation testimony that the Government seeks to admit.”?

The prosecution should, additionally, be required to show

that this type of evidence is essential to its case—i.e.,

is needed to establish the victim’s fear, rather than

merely cumulative of other evidence showing the same

thing.*? Absent such a showing, the clear danger of un-

21Tn the aiialogous context of co-conspirator hearsay, the courts

have been particularly sensitive to the risks of conditionally ad-

mitting statements that, like those at issue here, depend ultimately

for the admissibility on the proof of other facts. See, e.g., United

States v. Vinsen, 606 F.2d 149, 152-53 (6th Cir. 1979), cert. denied,

444 U.S. 1074, 445 U.S. 904 (1980); United States v. James, 590

_ F.2d 575, 582 (5th Cir.), cert. denied, 442 U.S. 917 (1979) ; United

States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978).

22 Frequently, the state of mind of the alleged victim can be

demonstrated without resorting to hearsay statements concerning

bad reputation. For example, the victim can testify to his state

of mind without relating the statements made to him concerning

the defendant’s reputation. Alternatively, there can be testimony

by others that the victim said he was afraid or demonstrated his

fear through his demeanor or other actions. Indeed, the victim’s

fearful state of mind can be inferred from the words and acts of

ae]

25

fair prejudice created by this kind of evidence necessarily

requires its exclusion under Rule 403.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOHN B. ANDERSON JOSEPH N. ONEK *

2720 35th Place, N.W. JOEL I. KLEIN

Washington, D.C. 20007 PAUL M. SMITH

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsel for Petitioner

* Counsel of Record

the defendant, and in many cases, the very fact that the victim

transferred property to the defendant will be strong circumstantial

evidence of his fear.

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 85-5403

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

DANTE GRASSI, DOMINIC SANTARELLI,

Defendants-A ppellants.

March 13, 1986

Appeals from the United States District Court

for the Southern District of Florida

Before HILL and ANDERSON, Circuit Judges, and

TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Appellants Grassi and Santarelli appeal their convic-

tion of violating the Hobbs Act, 18 U.S.C. § 1951 by

extorting money from Robert G. Wilson, Richard Gwenn

Williams, and Federal Bank and Trust Company, Ltd.

I. STATEMENT OF THE CASE

In mid-1978, Wilson and Williams organized a tax

shelter program for United States citizens. This shelter

involved the use of off-shore Bahamian corporations and

2a

banks. Although it purported to create tax shelters

through the buying and selling of T-bills and Ginny Mae

mortgages through a trader named Charles Tritt, Wil-

son, Williams, and Tritt had no intention of actually

trading, but merely set up paper transactions to give the

appearance of a legitimate operation through an entity in

the Bahamas entitled the Federal Bank and Trust Com-

pany, Ltd. This tax shelter is the subject of an independ-

ent indictment.

Initially, the shelter was faltering because of a lack of

funds and corporate entities. Wilson then turned for help

to appellant Santarelli who lived in Wilson’s Ft. Lauder-

dale neighborhood and who had loaned him money on

other occasions.

Santarelli loaned Wilson an undisclosed amount of

money and introduced him and Williams to several people

in the Bahamas who helped them to set up corporations

involved in the tax shelter scheme. One such Bahamian

was Clement Pinder. Through Pinder, Wilson and Wil-

liams arranged for a Bahamian accounting firm to

“audit” bogus confirmation slips and for an offshore trust

company to be a conduit for the fees for the sale of

phoney tax losses.

In late 1978, the tax shelter began to generate a large

amount of cash and by January 1979, Wilson had repaid

the loan to Santarelli. As a result of the venture’s suc-

cess, Wilson and Williams began looking into various

other investments in the United States and in the Ba-

hamas. They approached Clement Pinder about the pros-

pect of establishing a lottery in the Bahamas.

Appellant Santarelli found out about this meeting with

Pinder in March 1979 when he had drinks with Charles

Tritt and one of Tritt’s companions at the Brittania

Beach Hotel in Nassau, Bahamas. Santarelli became

upset that Wilson and Williams had contacted Pinder

about establishing a national lottery without first consult-

3a

ing him. He felt they should have asked whether he was

interested and that their approaching Pinder was an im-

proper use of his introduction. Santarelli stated, “I’m

going to go upstairs and call Florida and tell those two

bastards to get over here for a meeting.” ;

Shortly thereafter, appellant Grassi, who lived a short

distance from Wilson in Ft. Lauderdale, telephoned Wil-

son and told him and Williams to come to his apartment.

At this time, Wilson and his wife were having dinner

with Williams and his female companion. Wilson and

Williams left immediately to go to appellant Grassi’s

apartment.

At Grassi’s apartment, Grassi told Wilson and Wil-

liams that Santarelli was upset about their attempt to

set up a lottery program with the use of Santarelli’s con-

tacts in the Bahamas without telling him. Williams noted

that the money borrowed from Santarelli by Wilson had

been repaid with interest and that he felt no need to

consult him. Grassi then slapped Williams twice and

stated, “You got to show respect.” Wilson stepped be-

tween the two men, stating that Williams should leave

matters to him and that they would meet with Santarelli

in the Bahamas two days later. Later that night, Wil-

liams told his female companion that he and Wilson had

gone to see Mafia people and that Mrs. Wilson had told

him that Wilson had been very upset after returning

from Grassi’s apartment and that Wilson had cried.

On the second day thereafter, Wilson and Williams

flew to the Bahamas to meet with Santarelli. Grassi was

present during the meeting but did not participate in the

discussions. Santarelli explained that Wilson and Wil-

liams should have consulted him before they approached

his friend Pinder about the lottery venture. He stated

that they “had made him look like a fool with his people

in the Bahamas, and that he was going to take a piece of

the Bank.” At that point, Williams asked if Santarelli

————— eww

4a

was taking 5% of the tax shelter scheme. Santarelli

jabbed his finger into Williams’ chest and said, “No. I’m

taking one-third.” Williams then began to argue, at

which point Wilson again intervened and took him into

the next room. Out of the presence of Santarelli and

Grassi, the following conversation took place as testified

to by Williams:

Q. State what was said, sir.

A. Well, Bob took me into the other room and said,

“Look, let me handle this.”

I said, “Bob, what are you talking about? You’re

talking about somebody taking a whole one-third of

the bank,” and I said, “We’re going [sic] all the

work.”

I said, “You know, it just doesn’t seem fair to me.”

He said, “Look you know, they were there when

we wanted them. I got my money when I needed it.

They helped us with the people that needed to be

got at in Nassau, set up the trust company and

everything else.”

He said, “Let me handle it. Let me work it out.”

I said, “Well, I think that a third is just too

much.”

I said, “You know, okay, maybe for that we ought

to give away, maybe, ten percent, I don’t know, but

a third sounds like one hell of a lot to me.”

So, he said, “Well, look, I don’t know about you,

but I got kids and I don’t intend to argue.”

So, he said, “I’——he said, “You don’t argue with

people like this. If they say they want a third,

they’re going to take a third and what the hell are

you going to do about it.”

So, I didn’t do anything about it.

5a

Q. What did you say?

A. I said, “Well, if you really think that’s true,

then I guess I’ve got to go along with what you say.”

Wilson and Williams returned to the room and told

Santarelli that they were agreeable to his having that

percentage. They shook hands, and Santarelli apologized

for what had happened at Grassi’s apartment.

Upon leaving the suite, Wilson and Williams proceeded

to Tritt’s room where the three discussed various ways

in which they could reduce the net profit figure that would

be shown in the company in order to lessen the share

that Santarelli would receive. Wilson decided that they

had better not do this because Santarelli would find out

about it and they would have “nothing but problems.” He

said to Tritt and Williams: “Just let it go. We'll pay

the money.”

Shortly after this meeting, Santarelli told Tritt that he

had “straightened” Wilson and Williams out and that he

was taking a third of their profits, and that Williams

“was a little rambunctious and that he had slapped him

in the mouth once or twice.”

Santarelli also told another person, McKinney, that “he

was very upset with Mr. Wilson, that he had to slap him

to remind him who was in charge” and that “that was a

way he could get respect from him.”

Subsequently, Williams testified that in early 1980, he

caused approximately 1.4 million dollars to be transferred

into a Bahamian corporation owned and controlled by

Santarelli as payment of his share of the program’s 1979

profits. Additionally, over objection, the government in-

troduced evidence that Santarelli received approximately

$200,000 through investments Wilson and Williams made

in a company known as Casino Records. Finally, Williams

testified that Wilson said that Santarelli requested them

to invest approximately $250,000 in a night club in

Miami, Casino de Paris.

6a

II. ISSUES

We conclude that only the following issues merit con-

sideration on this appeal.

1. Whether the evidence is sufficient to support ap-

pellants’ conviction for violation of the Hobbs

Act.

2. Whether the trial court erred in denying appel-

lants’ requested jury instruction on the definition

of extortion.

3. (a) Whether the district court erred in admit-

ting evidence of appellants’ Mafia reputation for

the purpose of showing the victims’ fear.

(b) Whether the appellants’ Sixth Amendment

confrontation rights were denied by the method

used to prove appellants’ Mafia reputation.

(c) Whether evidence of Mafia reputation should

have been excluded under Rule 403 F.R.C.P.

4. Whether the district court was clearly erroneous

in finding appellant Santarelli’s out-of-court state-

ments admissible against appellant Grassi under

Federal Rule of Evidence 801 (d) (2) (E).

III. DISCUSSION

(1) Sufficiency of the Evidence

Appellants cite a number of cases for the proposition

that “where the defendant does not threaten the victim,

or instill fear, the defendant must, at a minimum, know-

ingly exploit a fear the victim harbors.” United States v.

Haimowitz, 725 F.2d 1561, 1572 (11th Cir.1984) ; United

States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980) ;

United States v. Duhon, 565 F.2d 345, 351 (5th Cir.

1978) ; United States v. Russo, 708 F.2d 209, 214 (6th

Cir.1983). They then argue that it would have been im-

os Rn hie aan Cae, lle

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possible for them to exploit Wilson’s and Williams’ fear

because there was no proof that they were aware of this

fear.

Appellants argue that the evidence is insufficient to

support the convictions because they said and did nothing

to create fear in the alleged victims, Wilson and Williams.

Santarelli says, for instance, that there is no evidence

that he instructed Grassi to slap Williams. Furthermore,

Williams testified that Santarelli’s jabbing his finger in

Williams’ chest at the meeting in the Bahamas did not

create fear in him. They contend that what induced fear

in Williams was the statements made by Wilson that

Santarelli had Mafia connections and that Santarelli was

not the type of person they should make angry. These

statements were made out of the presence of Santarelli,

and there is no evidence that Santarelli was aware of

these statements having been made.

The first difficulty we find with this argument is that it

is plain on the record that a jury could well infer from

the conduct of Grassi and Santarelli that they did actually

“threaten the victim or instill fear” in the victims them-

selves. Moreover, the record before us also contains evi-

dence from which the jury could well infer that the

appellants actually exploited the alleged victims’ fear.

It is plain that there was sufficient evidence to support

the trial court’s determination that Grassi and Santarelli

were engaged in a common enterprise and that, therefore,

the acts of one could be attributed by the jury to the

other. United States v. James, 590 F.2d 575 (5th Cir.

1979). We are presented with the following scenario:

When Santarelli learned of Wilson’s and Williams’ discus-

sions with his contact, Pinder, he stated: “I’m going to

go upstairs and call Florida and tell those two bastards

to get over here for a meeting.” (Emphasis supplied.)

Immediately thereafter, Grassi, who lived a short distance

from Wilson in Ft. Lauderdale, telephoned Wilson and

told him and Williams to come to his apartment. They

8a

left a party and went immediately to Grassi’s apartment.

There, Grassi told them that Santarelli was upset about

their using Santarelli’s connections in the Bahamas with-

out telling him. Williams attempted to argue and Grassi

then slapped him a couple of times hard enough to raise

welts and bruises on his face, saying, “you got to show

respect.” Wilson intervened to prevent Williams from en-

gaging in a fight and persuaded Williams to agree to go

to the Bahamas to see Santarelli two days later, which

they did.

From the meeting at Grassi’s apartment, and from

what other facts Wilson knew of Grassi and/or Santa-

relli,! all of whom lived in the same neighborhood in Ft.

Lauderdale, Wilson was convinced, and stated to his wife,

that they had been with Mafia people, following which he

broke down and cried.

Moreover, there is ample evidence from which the jury

could find the defendants both exploited the alleged vic-

tims’ fear. There is no question but that Wilson’s fear

was apparent the night of his meeting with Grassi. This

was later exploited when, in response to Grassi’s demand

they flew to the Bahamas two days later to meet Santarelli.

There, Grassi, who had already slapped Williams and told

him to “show respect” was in the room when Santarelli

made his statement that he was “taking” a third of the

business. Neither appellants nor the United States calls

our attention to any place in the record where there was

evidence that Santarelli had either slapped Williams or

Wilson. When Santarelli thereafter told Tritt that he

had done so, it is not clear whether he had at some time

slapped Williams and/or Wilson himself or whether he

was merely adopting the action of Grassi as his own. He

said that Williams “was a little rambunctious and that

1 Among the other facts they knew of Santarelli was the fact

that they had borrowed start-up money for their tax scheme and

had paid it back with interest and that Santarelli was reported

to be “loan-sharking” and reported to have “underworld” con-

nections.

ERB et aan Se ON

9a

he had slapped him in the mouth once or twice” and made

the further statement that “he was very upset with Mr.

Wilson, and that he had to slap him to remind him who

was in charge” and that “that was a way he could get

respect from him.” There could be no question but that

the jury could infer that such conduct by Santarelli and

Grassi exploited the fear that had already been created

at least in Wilson’s mind.

Although it is true that Williams testified that the oc-

currence in Grassi’s apartment did not scare him, since

he was accustomed to looking out for himself, there was

ample evidence that the conduct by Grassi and Santarelli

together, before Williams agreed to surrender one-third

of the business, created and exploited fear in him to resist

Santarelli’s demand.’

With respect to Grassi’s separate argument as to the

sufficiency of the evidence, we agree with the govern-

ment’s contention that Grassi’s part in setting up the

scheme in the Bahamas, after himself acting like a

gangster, slapping Williams and telling him that he had

to “show respect” * made him at least an aider or abettor

in Santarelli’s crime.

2 As to the state of Williams’ mind in surrendering payments to

Santarelli, there is the following testimony:

Q. Why did you consent to make the transfer, the initial

$50,000 transfer, to Casino de Paris?

A. Same reason that I consented to Mr. Santarelli becoming

a one-third partner in the Federal Bank and Trust?

What was that reason?

That I had little choice in the matter.

Why?

Because I felt that if I did not agree, that it might be

extremely dangerous for me not to.

tk ee

3 This term, while possibly not to be taken by judicial notice to

be mobster language and seems to us to be such, since the same

words were later used by Santarelli, who bragged to other persons

of having slapped Williams and Wilson, to make him “show respect.”

10a

(2) Jury Instruction on Extortion

The trial judge gave the following jury instructions:

The defendant can be found guilty of that offense

only if all of the following facts are proved beyond

a reasonable doubt:

First, that the defendant induced the person de-

scribed in the indictment to part with property;

Second, that the defendant did so knowingly and

willingly by means of extortion, as hereinafter de-

fined; and

Third, that the extortionate transaction delayed,

interrupted or adversely affected interstate com-

merce.

“Extortion” means to obtain property from some-

one else with his consent, but whose consent is

brought about or induced by the wrongful use of

actual or threatened force, violence, or fear.

The term “property” includes not only money and

other tangible things of value, but also includes any

intangible right considered as a source or element

of income or wealth.

The term “fear” means a state of anxious concern,

alarm or apprehension of harm, and it includes fear

of economic loss as well as fear of physical violence.

The term “wrongful” means to obtain property un-

fairly and unjustly by one having no lawful claim to

it. (Emphasis added.)

Appellants moved the court to modify the jury in-

struction by defining extortion to read: “Extortion means

to obtain property from someone else with his consent, but

whose consent is brought about by [a defendant’s] wrong-

ful use of actual threatened force, violence or fear.”

(Bracketed words not in instruction given to jury). Ap-

ee a eae Ol Dene nate ca Re IMS

ee 7

lla

pellants argue that under the instruction given, it was

possible for a jury to find appellants guilty even if they

believed the defendants themselves never exploited their

alleged Mafia reputation. They contend that even if the

jury instruction was proper, the trial court erred by re-

fusing to give the instruction as a theory of the defense.

We find no merit in this claim. The court charged that

in order for the jury to find him guilty, they would have

to find beyond a reasonable doubt that the defendant in-

duced the person described in the indictment to part with

property knowingly and willingly by means of extortion,

“as hereinafter defined”; then the definition of extortion

merely describes the meaning of extortion. It is clear that

the court charged that the inducing by the wrongful use

of actual or threatened force, violence or fear must be

by the defendants. The fact that this must have been

done by the defendant is amply covered by the part of

the charge stating what the defendants must knowingly

and willingly have done. The court’s charge made it per-

fectly clear that the act of extortion must have been done

by these defendants. Such a charge also clearly satisfied

the requirement that the jury must be charged as to the

defendant’s theory that they were not responsible. It told

them that the illegal acts of threat or exploitation must be

acts of these defendants and not of anyone else.

(3) Evidence of Mafia Reputation

(a) The district court admitted over objection out-of-

court statements by Wilson concerning his fear of appel-

lants in his belief that they were “loan sharks” and con-

nected with the mob or Mafia. Appellants contend that

there was no evidence of threats or exploitation. These

statements were introduced through the testimony of Wil-

liams and Tritt, on the theory that they showed the

12a

alleged victims’ state of mind and thus were not hearsay

but were admissible under Rule 803(3) F.R.Evid.*

As we have already held that there was evidence to

show that Santarelli and Grassi intentionally threatened

and exploited Wilson’s fear, we find no merit in their

contention that such evidence was lacking and that the

evidence should therefore not have been admitted.

(b) The Sixth Amendment Confrontation Issue

Appellants contend that even though the statements

above referred to were admissible either as exceptions to

the hearsay rule or as not being hearsay, they were denied

the rights of confrontation of the witness, Wilson, whom

Williams quoted as having made the statements as to the

fear induced by the defendants and by their reputation.

The trial court told the jury that this evidence was ad-

mitted only as evidence of the victims’ state of mind.

This issue has been discussed in the case of the Court of

Appeals for the Fifth Circuit, by which we are bound,°

United States v. Hyde, 448 F.2d 815 (5th Cir.1971),

which stated:

The victim’s fearful state of mind is a crucial ele-

ment in proving extortion. The testimony of victims

4 This rule states:

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

(3) The existing mental, emotional, or physical condition.

A statement of the declarant’s then existing state of mind,

emotion, sensation, or physical condition (such as intent,

plan, motive, design, mental feeling, pain, and bodily

health), but not including a statement of memory or belief

to prove the fact remembered or believed unless it relates

to the execution, revocation, identification, or terms of

declarant’s will.

5In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)

(en banc), this Court adopted as precedent all of the decisions of

the former Fifth Circuit decided prior to October 1, 1981.

18a

as to what others said to them, and the testimony of

others as to what they said to victims is admitted

not for the truth of the information in the statements

but for the fact that the victim heard them and that

they would have tended to produce fear in his mind.

As Professor Wigmore has pointed out:

Wherever an utterance is offered to evidence

of the state of mind which ensued in another

person in consequence of the utterance, it is ob-

vious that no assertive or testimonial use is

sought to be made of it, and the utterance is

therefore admissible, so far as the Hearsay rule

is concerned. (Emphasis in original.)

Wigmore, Evidence § 1789 (1940). See Nick v.

United States [122 F.2d 660 (8th Cir.1941)] supra.

Thus it is no ground for objection that the third per-

son making the statement to the victim is not pro-

duced as a witness or even that he is not named.

The defendant’s right of cross examination is pre-

served in that he can ask the witness whether he

truly heard these fear-producing statements.

It is noted that the Hyde opinion dealt with the con-

frontation issue where it stated: “the defendant’s right

of cross-examination is preserved in that he can ask the

witness whether he truly heard these fear-producing

statements.”

Moreover, the defendant’s right of confrontation was

further preserved to them in this case, since Wilson had

been granted immunity to testify, had been interviewed

by the defendants who found him “cooperative” but who

then decided not to call him as a witness.

We conclude that the circumstances of this case satis-

fied the confrontation requirement, which the Supreme

Court described as “substantial compliance with the pur-

poses behind the confrontation requirement.” Ohio v.

Roberts, 448 U.S. 56, 69, 100 S.Ct. 2531, 2540, 65 L.Ed.2d

l4a

597 (1979), where the Court quoted from California v.

Green, 399 U.S. 149 at 155, 90 S.Ct. 1930, 1933, 26 L.Ed.

2d 489. The production of the witness Wilson and the

grant to him of immunity also made it possible for the

defendants to examine him to their heart’s content if they

had chosen to do so.

(c) We also conclude that there is no merit in Santa-

relli’s contention that this evidence should have been ex-

cluded under Rule 403 because of its highly prejudicial

nature and low probative value.® This Court’s consistent

holdings that Rule 403 is an extraordinary remedy to be

used sparingly because it permits the trial court to ex-

clude otherwise relevant evidence, is best stated in United

States v. Meester, 762 F.2d 867, 985 (11th Cir.1985) :

The United States Court of Appeals for the Fifth

Circuit stated in United States v. McRae, 593 F.2d

700 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct.

128, 62 L.Ed.2d 83 (1979)° that:

5In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1981) (en banc), this court adopted as precedent all decisions

of the former Fifth Circuit decided prior to October 1, 1981.

Relevant evidence is inherently prejudicial;

but it is only unfair prejudice, substantially out-

weighing probative value, which permits ex-

clusion of relevant matter under Rule 403. Un-

less trials are to be conducted on scenarios, on

unreal facts tailored and sanitized for the occa-

sion, the application of Rule 403 must be cau-

tious and sparing. Its major function is limited

to excluding matter of scant or cumulative pro-

6 Federal Rule of Evidence 403 states:

Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

15a

bative force, dragged in by the heels for the sake

of its prejudicial effect. As to such, Rule 403 is

meant to relax the iron rule of relevance, to per-

mit the trial judge to preserve the fairness of

the proceedings by exclusion despite its relevance.

It is not designed to permit the court to “even

out” the weight of the evidence, to mitigate a

crime, or to make a contest where there is little

or none.

Id. at 707 (emphasis in original.)

762 F.2d at 875.

The standard of review of such refusal of the trial

court to exclude evidence under Section 403 is abuse of

discretion. We do not find that the trial court here abused

its discretion in refusing to exclude this evidence.

(4) Santarelli’s Out-of-Court Statements as Admissi-

ble Against Grassi Under Federal Rule of Evi-

dence 801(d)(2)(E)

This Rule provides:

A statement is not hearsay if—

(2) The statement is offered against a party and

is ... a statement by a co-conspirator of a party

during and in furtherance of the conspiracy.

We have already decided that there was sufficient evi-

dence from which the jury could decide that Grassi and

Santarelli were engaged in a conspiracy under James. As

pointed out by the government, the statements objected

to by Grassi were in furtherance of the conspiracy, be-

cause from these statements a jury could well infer that

they were made for the purpose of further threatening or

exploiting existing fears of the victims.

IV. CONCLUSION

The judgments of conviction and sentences are AF-

FIRMED.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

OFFICE OF THE CLERK

50 Spring Street S.W.

Atianta, Georgia 30303-3147

June 4, 1986

Spencer D. Mercer

Clerk

TO ALL PARTIES LISTED BELOW:

No. 85-5403

USA vs. GRASSI, et al.

D.C. Docket No. 84-855-CR-SMA

This is to advise that an order has this day been en-

tered denying the petition() for rehearing. —

— The Court having been polled at the request of one

of the members of the Court and a majority of the

Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 26),

the petition() for rehearing en banc has also been

denied.

xx No member of the panel nor judge in regular active

~~ service on the Court having requested that the Court

be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure, Eleventh Circuit Rule 26),

the petition() for rehearing en banc has also been

denied.

17a

See Rule 41, F.R.A.P., and Eleventh Circuit Rule 27

for issuance and stay of the mandate.

Sincerely,

SPENCER D. MERCER

Clerk

By: /s/ Karen B. Sinyard

Deputy Clerk

cc: Thomas F. Almon

E. David Rosen

John B. Anderson

Bohn Phillips, AUSA/Miami

Vincent L. Gamba!

18a

APPENDIX C

EXCERPTS FROM TRIAL TRANSCRIPT

[4-24] MR. PHILLIPS: Yes, Your Honor.

United States versus Hyde, I would submit, the Fifth

Circuit case which is still the law to my knowledge, states

that the victim’s fearful state of mind is a crucial ele-

ment in proving extortion; that the testimony of vic-

tims, as to what others said to them, and the testimony

of others, as to what they said to victims, is admitted not

for the truth of the information in the statements, but

for the fact that the victim heard them and that they

would have tended to produce fear in his mind.

I would submit, Your Honor, that the hearsay testi-

mony is admissible on that basis.

THE COURT: Mr. Rosen?

MR. ROSEN: If Your Honor please, I think we have

to look at the facts in the case as opposed to the facts

in this case, and the facts in this case, as I recall the

Hyde case, are substantially different; where two busi-

nessmen get into a conversation, both of them alleged to

be victims, and the one victim allegedly saying to the

other, ‘We have to pay, because this man is in organized

crime.”

I do believe, Your Honor, that considering where we

are, the posture we are in in this case, [4-25] it is sub-

stantially different.

I can recognize the general proposition of law that Mr.

Williams mentions, but the propositions of law have to be

applied to the facts of the case, and needless to say, Your

Honor, the way the Government has presented its case

would appear that this evidence could and would be a

crucial point, turning point in this case, and I submit it

would be fundamentally unfair under the facts of this

case to permit that kind of evidence to go to this jury.

19a

I might point out, Your Honor, we had Mr. Tritt on

the witness stand yesterday. He never said—he was never

asked and he never said he—of course, this is argument

for the jury, possibly, but he never said that he told them

anything.

THE COURT: Mr. Almon.

MR. ALMON: I can’t add much to that.

I think under 403, there is—even if there is some—I

understand the general proposition, too, but there is

prejudice that would be involved in just throwing out the

term “organized crime, underworld figures.” The whole

case will turn on it.

There is no way that a jury can—if you give the in-

struction that’s required by the cases anyway, after each

time, I just don’t think there is any way [4-26] that the

jury can separate the two at this point.

There is plenty of evidence that’s going to come in

through Mr. Williams that he was physically assaulted.

He’s going to say that Mr. Grassi physically hit him. He’s

going to say that Mr. Santarelli pushed him with his

finger.

Now, that’s what the Government is relying on with

regard to fear in this case. They’re not relying on repu-

tation, everybody in the community coming up to Mr.

Williams and saying, “Look, these guys down the block,

they’re the mafia,” or anything else like that.

They’re relying on the actual physical acts. That’s

sufficient. That’s what they alleged in terms of proving

the extortion, and I would move to exclude any reputation

testimony because of the danger of prejudice that’s in-

volved with it.

THE COURT: It is the responsibility of the Court

to apply the law as it is. I didn’t make the law. I’m not

saying I necessarily disagree with it, either, but it does

20a

seem clear that the nature and type of testimony sought

to be offered through this witness, as just adduced on the

witness stand, is admissible under proper and appropriate

instructions to the jury, limiting the use of it to state of

mind [4-27] and/or fear-type of situations, which the

jury can either accept or reject in terms of credibility

and/or weight, and with appropriate instruction, that the

testimony is not coming in for the truth of the facts or

the matters.

United States versus Hyde, 448 Federal Second 815, a

leading case in the Fifth Circuit, 1971, at Page 845 has

this to say:

“Hobbs Act cases have previously approved allowing

similar testimony as bearing on the victim’s state of

mind,” stating a number of cases.

“The statute does not require an explicit threat from

the defendant,” quoting from U.S. v. Tolub, 309 Federal

Second at 289. “It requires only that the defendant in-

duces victim to part with property through the use of

fear. 18 U.S.C. Section 1951 (b) (2).

“The jury is permitted to find such inducement by use

of fear from the testimony as to the state of mind of the

victim. The victim’s fearful state of mind is a crucial

element in proving extortion.

“The testimony of victims as to what others said to

them and the testimony of others as to what they said

to victims is admitted not for the truth of the information

in the statements but for the fact [4-28] that the victim

heard them and that they would have tended to produce

fear in his mind.”

Then there’s a quotation from Wigmore, following

which the Court says: “Thus, it is no ground for objec-

tion that the third person making the statement to the

victim is not produced as a witness or even that he is not

named.

Hedicdgdis a RRNchits ote «tet

2la

“The defendant’s right of cross-examination is pre-

served in that he can ask the witness whether he truly

heard these fear-producing statements.

“Such testimony may not be used to show that the

defendants, in fact, made threats or otherwise made use

of such fear in convincing the victims to pay.

“The jury here was properly instructed to consider the

testimony only in determining the victims’ state of mind.”

United States versus Russo, Ninth Circuit case, 708

Federal Second 209, 1983 case, also supports that.

There are several other cases which also permit the

use of the terminology such as “underworld mob” or

“mafia,” where the proper instructions are given to the

jury with regard to the limited use of the evidence.

[4-29] So, the ruling of the Court is the evidence is ad-

missible and, in so doing, I have also applied Rule 403

and weighed the relative affects on both the defendants

and the Government, and I do feel that in view of the

difficulty in proving a state of mind, which is an essential

element here, that it is necessary for the Government’s

case.

« . 7

[4-44] MR. ROSEN: If Your Honor please, I would

object.

THE COURT: I’m going to overrule the objection,

but in part, ladies and gentlemen of the jury, the testi-

mony that the witness attributes to Mr. Wilson with

regard to use of the term “underworld characters,” and

subsequen. testimony that may be elicited along similar

lines, is normally hearsay testimony and cannot be ad-

mitted for the truth of the statement; in other words,

that the statement made is a fact, that the people or the

persons were underworld characters.

22a

That’s not the purpose for which the statement is being

allowed to be offered by the witness as purportedly relayed

to him by Mr. Wilson.

It may be considered by the jury only with regard to

what affect, if any, this had or caused on this witness

and Wilson’s state of mind or fear under the allega-

tions or charges that are contained in the indictment, and

you may either accept or reject that testimony in whole

or in part as you evaluate it, but [4-45] it is not coming

in for the truth of the statement itself or the fact of

which the statement purports to convey.

It is simply if it has any relevancy or value in the

jury’s mind as it may or may not relate to state of mind

of Mr. Williams and/or Mr. Wilson.

% ie * *

[8-165] There have been instances during the course

of this trial where references were made to the defend-

ants’ alleged affiliations with organized crime. In each

of the instances, the defendants Grassi and Santarelli

were not present at the time the remarks were allegedly

made. As such, these references were admitted into evi-

dence for a very limited purpose, that is, to allow you

to evaluate the state of mind of the witnesses.

You are not here to determine or even speculate on

who, if anyone, is an alleged affiliate of organized crime.

You are only to determine if the defendants are guilty or

not of the charges set forth in the indictment. Their

reputation is not before [8-166] you for an ultimate

determination of facts.

From time to time during the course of the trial, this

Court has given a limiting instruction under circum-

stances in which testimony by a witness is offered not

for the truth of the statement but rather for the limited

purpose of placing before the jury that the witness claims

that such a hearsay statement was made. I caution you

a Omega

23a

that these statements may be considered by you only

insofar as they tend to prove or disprove the state of

mind, frame of mind or fear, if any, of the alleged vic-

tims; that is, the statement may be considered as evi-

dence demonstrating the fear or lack thereof of the

victims. The jury may accept such statements or reject

the same in whole or in part for the limited purposes

indicated. The actual truth of the contents of the state-

ment may not be considered in your evaluation of the

testimony.

* * * *