Appendix — O'Connor v. United States

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APPENDIX A

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In The

UNITED STATES COURT OF APPEALS

, For The Ninth Cireuit |

| PAUL JOHN CARBO, FRANK-PALERMO, )

JOSEPH SICA, LOUIS TOM DRAGNA,

-and TRUMAN K. GIBSON, JR.,

No: 17,762

Appellants,

De C Reb, 18, 1963

VS.

e

. ‘UNITED STATES OF AMERICA,

Appellee,

84" | Upon Appeal. from the United States District Court

for the Southern District of California

Central Division

Before: Barnes, Hamu and Merritt, Circuit Judges

Merrit, Circuit Judge ;

Appellants stand convicted of extortion affecting com-

merece and conspiracy to extort in violation of 18 U.S.C.

‘$1951, commonly known as the Hobbs Act,’ of the inter-

’ ™(a) Whoever in any way or degree obstructs, delays,

or affects commerce or the.movement of any article or

commodity in ‘commerce, by robbery or extortion or at-

tempts or conspires so to do, or commits or threatens —

physical violence to any person or property in further-

ance of a plan or purpose to do anything in violation of

this section shall be fined not more than $10,000 or im-

prisoned not more than twenty years, or both.

“(b) <As used in this section—

(2) The term ‘extortion’ means the obtaining of prop-

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fOpinion of the United States Court of Appeals)

state transmission of threats’ and conspiracy to transmit

in violation of 18 USC. §875(b).2 and of conspiracy to

vommit an offense against the United States under IS USC.

S871" They were variously charged in ten counts of an

indictment by the Grand Jury of the Southern District of

California, Central Division. On May 30, 1961, following

trial, they were found guilty by jury verdict and on De-

cember. 2, 1961, were duly sentenced. They have appealed —

from their several judgments of conviction.

Q

erty from another, With his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or

under color of efficial right. ae Nee.

(3) The term. ‘ecommerce’ means commerce within the

District of Columbia, or any Territory or Possession of

the. United States; all commerce between any point in a

State, Territory, Possession,-or the District of Columbia

and any point outside thereof; all commerce between points

within the same State through any place outside such

State; and all other commerce over which the United States

has jurisdiction.”

*(h) -Whoever, with intent to extort from any person,

firm, association, or corporation, any money or other thing

of value, transm. s in interstate commerce any communica-

tion containing any threat to kidnap any person or any

threat to injure the person of another, shall. be fined not -

more than. $5,000 or imprisoned not more ‘than twenty

vears, or both.” |

“Tf two or more persons conspire either to commit any

_ offense against the United States, or to’defraud the United

States, or any agency thereof in ‘any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years, .

or both.” == ; .

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(Opinion of the United States Court of Appeals )

The case involves in general the business of professional

boxing and fight promotion and, more specifically, the

efforts of appellants to secure managerial! control of Don

Jordan, a welterweight fighter, by bringing pressure .to

bear on his manager, Donald Nesseth. These efforts were

prompted, according to the theory of the United States ax

expressed it its brief, by the fact that “* * * ‘control’ of

champions and top contenders was the only significant

profit factor.in the operation of the boxing hasiriess. The

evidence shows thaf ‘control’ was effected and maintained

through matching controlled fighters with one another

‘and that the. technique for obtaining this control was to cap-

ture the fight manager through use of economic and, as a

last resort, physical coercion.”

Since the contentions on appeal relate importantly to the

sufficiency of the evidence, the facts-mtst be deab-aith

some length. :

THE FACTUAL BACKGROUND,

The matehing of controlled fighters has already beeu con

sidered by the federal courts in proceedings brought against”

the Internationa! Boxing Clubs of Néw York and Illinois

for violation of t#e Sherman Act. International Boxing

“Clubs vs. United States, 1959, 358 U.S. 242, affirming

United States vs. International Boxing Clubs, S.D.N.Y..

1957, 150 F. Supp. 38%. Since these proceédings figure di-

rectly in the background of the case. at bar. a reference to

- the facts there established is helpful. The Supreme Court,

at pages 245-246 recites :_ ,

“The conspiracy began in January 49, when ap

pellants Norris and Wirtz, who owned and controlled

the Chicago Stadium, the Detroit Olympia Arena and

the St. Louis Arena, made an agreement with Joe

(Opinion of the United States Court of Appeals)

Louis, the then heavyweight boxing champion of the -

world. Wishing to retire, Louis agreed to give up his

title after obtaining from each of the four leading con-

tenders exclusive promotion rights including -rights to.

radio, television and movie revenues. Upon securing

these exclusive contracts Louis assigned them to the

appellant International Boxing Club, Illinois ad

The opinion then recites that Norris and Wirtz organized

the International Boxing Club of New York and‘for it

acquired control of Madison Syuare Garden and entered .

247

_into other contracts. The opinion then states, at) pages

248; ;

“This series of agreements consummated within four

months’ time, gave appellants ‘exclusive control of the

promotion of boxing matches in three championship

divisions, ie. heavyweight, middleweight, and welter-

weight. Not satisfied with this temporary control, how-

ever, appellants perpetuated their hold on champion-

ship bouts by requifing each contender for the title to

grant to them an exclusive: promotion contract to his

championship fights, ineluding film and broadcasting,

for a period of from three to five vears.Over the facili-

‘Aies for the staging of contests ‘appellants "exercised

like control, owning or managing the ‘kev’ arenas ‘and

stadia in the Nation. ° x

— ~* * i. *

“The effect of the conspiracy ‘is obvious. Using the

facilities of 1.B.C., Hlinois, and J.B.C., New York, ap-

pellants entered into. exclusive promotion contracts .

with title aspirants, requiring exclusive handling agree-

ments in-the event the contender became champion. In’

amassing their empire, appellants obtained control

of champions in three divisions. The choice. given a

’

( Ovinien of the United States Court of Appeals)

‘container thereafter was clear, ie., to sign with ap-

-‘pellants or not to fight.”

Later, at page 254, the opinion states: : ;

“This illegal activity gave appellants an odorous

monopoly background which was known and still-féared

in the boxing world.” —

By the decree Norris and Wirtz were directed to divest

themselves of their stock holdings in Madison Square Gar-

den. The boxing clubs were ordered dissolved. ‘All exclusive

. agreements for the promotion of boxing events were banned.

Appellant Truman Gibson, a Chicago attorney, repre-

sented Joe Louis in 1949 at the outset of the sequence of ,

events deseribed in the Supreme Court opinion and from

their inception was active in the affairs of the International

Boxing Clubs. In 1958 he was made president of both .

clubs. It is the government's position that as antitrust,

pressure was applied to the clubs they ceased their prac-

“tice of requiring that exclusive management be granted

to the clubs; that the practice of securing exclusive manage-

ment agreements was continued by Appellants Carbo and

T -alermo and that Appellant Gibson, with ‘full knowledge

- of Carbo’s practices and methods of. operation, continued,

through his dealings with Carbo and for their mutual ad-

‘vantage to match Carho-controlled fighters.

’ Carbo, with a background of underworld association,

emerges as the leader of the conspirators. Gibson’s first

contact ‘with him came shortly after the boxing clubs were

organized sometime in 1950. From time to time hetween

1954 and 1957, Gibson caused payments amounting to ap-

proximately $40,000.00 to be made to-Carho by the boxing

clubs through the device of placing Carbo’s wife, Viola

Masters, on the clubs’ payrolls for fictitious employment.

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‘Opinion of the United States Court of Appeals)

Payment was °xplained by Gibson as being for the purpose

of seeuring Carbo’s. good will and of preventing fighters

or managers with whom Carbo had “influence” from be-

coming antagonized or alienated. In investigations con- .

ducted by the United States Senate, Gibson had explained

why Carbo’s wife had been employed rather .than Carbo

himself : “Because it looked a little bit better on our records,

not ever considering the possibility of being ealled before a

senate investigative commitiee, to have Viola Masters down .

instead of Frank Carbo.” Both before the Senate commit-

tee and in trial below, Gibson acknowledged that in their

operations the boxing clubs had had dealings with the

underworld. This practice was resorted to in order “to

inaintain a free flow of fighters without interference, with-

out strikes, without sudden illnesses, without sudden post- .

ponements.” Gibson testified that the boxing elubs would

use “everyone” they could to prevent fixed fights and that

in “everyone”: he included the underworld. On redirect

examination Gibson was asked whether it was “the. policy

of the International Boxing Club or any other organization

-with which you were connected in the fight business to

use force or Violence o1 threats of foree and violence

to which. Gibson replied “No indeed.” On recross examina-

tion he was asked: “Of course, Mr. Gibson; when you used

** #°

_. various people to achieve your ends you didn’t know what

those other people were doing on your behalf, did you?”

"Fo which’ Gibson answered: “Not completely, no.”

The district court judgment in the antitrust action was

‘ rendered in. March, 1957, Commencing in the surhmer of

1958 Gibson sought to extend the influence of the boxing

clubs to thé west coast. At that time there were two exhi-

bition halls in Los Angeles suitable for the staging of box-

ing coniests : the, Hollywood Legion Stadium and the Olym-

pie Auditorium. Gibson moved to secure control of both. -

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(Opimon of the United States Court of Appeals)

At this time he was in charge of-promoting weekly the

two nationally televised boxing contests: Wednesday night

on ABC and Friday night on NBC. At least $180,000.00 a

week was received by the boxing clubs in connection with

these promotions. The possibility: of sharing in the tele-

vision profits provided ‘an incentive to deal with Gibson.

A new organization known’ as the “Hollywood Boxing and

Wrestling Club” was established by Gibson and his associ-

ates to lease the Hollywood Legion Stadium. The Interna. .

- tional Boxing Clubs lent $28,000.00 to this organization

to commence operation. Named as. president of the new

organization and acting as its promoter and matchmaker

* was Leonard Blakely, known professionally (and herein- ~

after refi erred to) as “Jackie Leonard.” Leonard's vulnera-

bility to economic pressure from Gibson is. apparent. Not

only was his club indebted to Gibson’s organizations but

his future was largely dependent on Gibson’s good will with

respect to participation in the televising of contests.

In the fall of 1951, Virgil Akins, a Carbo-controHed fight- ,

er, was welterweight champion. A promising contender was

Don Jordan, who was managed by Donald Nesseth. Nes-

seth had been making repeated efforts to obtain fights for.

Jordan on national television and had enlisted Leonard’s

“support in this respect. With Gibson’s assistance Leonard

secured one such fight at the Legion Stadium with the -

fighter then ranked as the number one contender in the

welterweight ranks. Jordan won this and tivo other tele-.

vised bouts and became the leading contender. for the title.

_A fourth match at the Olympic Auditorium in Los Angeles |

was arranged for October 22, 1958, and Gibson assured

Nesseth that Akins, thé champion, had agreed to defend his -

title against the winner af the bout. Jordan won.

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(Opinion of ike United States Court of Appeals)

The sequence of events which are now related are based

in large part on the testimony of Jackie Leonard and in»

many respects are vigorously denied. 4

On October 23, 1958, while Nesseth, Leonard and Gibson,

at the Olympic Auditorium, were ‘discussing the anticipated

championship ‘fight between Akins and Jordan, Gibson -

received a telephone ca!! from Appellant Palermo. Gibson

spoke briefly and then handed the phone to Leonard, saying

that “Blinky” wanted to speak to him. Palermo told Leon-

ard; “We are in f ~ half the fighter [fifty per cent of the

manager's share | or there won't be any fight.” Leonard

protested that he had never-heard of any such proposition

before, and Palermo, upon learning that Gibson had not

explained the situation, told him to talk it over with Gibson

and ‘eall him back. When Leonard recounted the conversa-

tion, Nesseth flatly refused. Gibson explained that Carbo |

and Palermo controlled Akins and apologized for not hav-

- ing informed him of Palermo’s demands earlier.

tibson, Nesseth and ,Leonard met later in the day ‘at

libson’s liotel for purposes of privacy and continued to

discuss Palermo’s demands. Aceording to Leonard’s tes-

timony, Gibson’ said: “You know how Carbo and Biinky

[Palermo] are * * *. They want all of everything hefore

you can get a welterweight title fight ** * [bret] go along.

with it. It has been done before. That, is the way the welter-

weight and lightweight title-has been worked since Carbo

and Blinky got into the pieture.” Gibson proposed that

Nesseth should tell Palermo that che agreed, and assured

Nesseth and Leonard that he, Gibson, would straighten

things out later-in Chicago. Nesseth refused. He feared

violent: retaliation if Carbo and Palermo, falsely informed

that Nesseth had yielded, should later discover that he had

no intention: of surrendering an interest in Jordan. He

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(Opinion of the United States Court of Appeals)

testified. “* * * we reminded Truman [Gibson] that these.

weren’t kids that, we ‘were talking to, and that he couldn’t

do very much protecting from 2,500 miles away, if they de-

‘cided to start playing rough, and Truman scoffed at that

‘end said that went out with high-buttoned shoes, that there,

wouldn’t be any of that, and not to worry, that he would

straighten it out.” Gibson finally persuaded Leonard to

call Palermo and to tell hiin: the arrangement was satis-

factory. This Leonard did, learning from Palermo that

Gibson had already advised him that everything was all

right. ie eked

On December 5 Jordan defeated Akins and became the

welterweight champion of the world. The fight, arrange-

ments called for a re-match if Jordan won, with Palermo’s -

share of both fights being payable after the re-match. Jor-

dan, won the re-match. eae |

Between these two matches, .tordan on January 22,

1959, fought a match. with another-fighter, Gutierrez. Leon-

ard asked Gibson who was to pay Palermo’s share of that

fight and Gibson said that if necessary he would pay it

himself, ia |

sAfter the Gutierrez fight, when the money was slow in

coming, Palermo telephoned Leonard, screamed and shout-

ed that he was being stalled and double-crossed. Leonard

‘tried to pacify him by telling him that he had’ seen Gibson

that day and that the money would be sent. Palermo said :

he didn’t want to hear anything about Gibson; that. he was

holding Leonard and Nessethi responsible and that Leonard .

was expected to handle Nesseth. ‘Carbo then took the phone

from Palermo and, according to Leenard’s testimony, :“ He

said, ‘You son-of-a-bitching double-crosser.’ He said, ‘You

are no good,’ and he says, ‘Your word is no good. Nothing

is no good about you.’ He said, ‘Just because you are 2,000

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(Opinion of the United States Court of Appeals)

miles away, that is no sign I can’t have you taken care of.

He said, *! have not plenty of friends out there to take care

of punks like vou.’ He said, ‘The money had hetter be in.’

** * | was trving to get a word in edgewise, to tell him the

inoney, would be sent that dav. He wouldn’t let me say any-

thing, he was just cursing and hollering at me and saving

there would be somebody out here to take care of me, and if

that money ional there right away somebody would. be

looking me up.” .

qoonard was badly frightened by the conversation. After”

hanging up he turned ‘to Nesseth, who had been standing

next to the telophone booth, and told him everything that

had been said. Nesseth noticed that. Leonard was “shaken

np. nervous.” * ji J \-

Leonard later, by arrangement with Gibson, sent his per-

sonal check for $1,725.00 to Claire Cori (Pak rmo’s wife)

and was reimbursed by Gibson. ‘.

Duiing ihis period of time Palermo and Gibsoik both be-

gan to expres. an-interest in matching Jordan with Sugar.

Hart, another Carbo-controlled: welterweight. Nesseth was

not interested. The match would be a hard one and Nesseth.

felt easier matches would be more profitable and less risky.

The Jordan-Akins re-mateh was held in St. Louis on

April 24, 1959. Palermo iminediately demanded his shate

from Nesseth. Nesseth flatly refused: to pay anything and

explained thet he had never consented to surrender an in-

terest in Jordan and the circumstances under which Leon-

ard and’ Gibson’ had stated the contrary to Pak no. Pa-

lermo’s final comment -was that “ ‘The Man’ isn’t going to

like this.” Palermo ealled Leonard and, according to

Leonard’s testimony: “He told me T would be hearing from

him right away, I. better do something to straighten this

: ”

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(Opinion of the United States Court of Appeals) °

mess ‘out or I was going to get, in a lot of trouble with the

people back East.”

On April. 28 Nesseth and Leonard were in Leonard's

offiee- when a call came from Carbo.. Leonard testified :

“* * © the voice said, ‘Hello, hello, hello. You know who this

is?’.] says, ‘Yeah, I know who this is.” And he says, ‘You're

a no good’ —and he used some vulgar language and. called

me a double-crosser and told me that heewas going to get

somebody to take care of me, that if he was there, he would

gouge my eves out, and I was goin, to get hurt, and when

he meant hurt, he meant dead, and he called me another

S.B. and different names, real bad names, ‘double-crosser,

and he says, ‘We are going to meet at the crossroads,” he

Says, “You will never get away with it. T have had that title

25 vears and no punks like vou are_going to take it away

from me,’ and he repeated that statement, he says, ‘When,

1 mean get vou, you are going to be dead,’ hie said, ‘We

will have somebody out there to take care of you.

948

Nesseth testified: “What I heard from Leonard’ s end of

.the conversation, there wasn’t very mueh cqgnversation on

“his part. One or two times he stammered and said, “You

shouidn’t say those things.’ But the call, | would say jt was

very one-sided, and | did notice and observe that Leonard

turned about, the color of your ‘shirt during the course of

that conversation, and’ when the phone call was over and he

hung up the phone he sat-there just for a second and he got

up and ran across the hall to the ladies’ room, which we used

during the daytime as a men’s reom, and he vomited. I

have never’seen anvbody any more shaken up than he was

at that time.” ;

A few minutes later a telephone call eame from Palermo.

Leonard testified: “And he said, 1 was a double-crosser

and I was no good and he was coming to the coast ana he

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(Opinion of the United States Court of Appeals)

was going to see some people and they were going to see

me. And I told him there was no good to come, and I was

mad, I was very mad, and | hung up on Blinky.”

Later, at Leonard’ s home, he received another ci all from

Palermo which he deseribed as follows: “He wanted to

know if TF cooled off yet and said, ‘Jesus, there is no use

heing like that.’ He says, ‘After all, maybe the guy shouldn’t

—* called like, that, but’ he said he figures he had a right

», ‘they have had that account a long time and you people -

out there are double-crossing him.’ He saidg ‘Now, we

might as well ‘be like gentlemen and tot be mad,’ and he

savs, ‘I will be out there and talk te vou.’ | said, ‘There is

no use of coming out here, | am fed-up with all of you,’ ‘+

1 told him he would have to see Nesseth and’ he said,

can’t see Nesseth unless he will sit down and talk to ae

And T said, ‘You will have to take care of that, there ts

nothing T ean do about it. Nesseth doesn’t want te talk to

any of you and if’ you Want te talk with him, vou will have

to make your own contact with him.’ W ith that he said,

‘Well, Twill be out there in a few days and we are going

to look veulup.

On April 30 Gibson, who had been notified by Leonard

Gf the thre ‘atening ¢ ‘alls, telephoned Leonard and offered to

pump additional capital into the Hollywood Chub if, Leon-

ard would -persiiade Nesseth to agree to a Hart fight. On

the same day Palermo arrived in Chicago from the east

and staved at the Bismarck Hotel (owned by Norris and

Wirtz) at the expense of the Boxing Clubs. On Mav 1 he

met with Gibson and Hart's manager in the lobby of the

-hotel and thereafter left for Los Angeles.

On May 2. Leonard had a telephone eall from Palermo

summoning him to a late night meeting at a Los Angeles

hotel. He entered the hotel to find Palermo in company

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(Opinion of the United States Court of A ppeals )

with Appellant Siea. Describing his reaction to Siea’s pres

ence in company with-Palermo, Leonard testified : “Well,

-the minute I seen him | remembered what Carbo had told

_ame before about somebody on the west coast taking care of

. ° . .

me and for once ] was seared, when | seen him. * *.* Well,

by reputation I had always known of Joe Siea as an under-

—worldaman and a strong-arm man.”

In their conversation, according to Leonard, Siea stated:

“Heo savs, ‘Look, Jackie, vou made a choice, It is .a ques-

tion-of either vou or Don Nesseth is going to get hurt.

Wouldn't vou rather go grab him by the neck and straighten

him ont, than for me te go back tell “The Gray"? You try.

it, vou are all right, but. it is Nesseth that is no good.’ "The

way if ix new.’ he says, ‘you and Blinky have both got vour

necks in a sling,’ and he said, ‘Something has got te he

straightened out.’ He said, ‘Hf vou have to, go out and beat

the hell out of Nesseth. If du need any help we will go with

vou and help vou and drag him out.of bed.”

Also. referring to Palermo, Leonard stated: “Well, Blin-

ky said, ‘That is the only answer tothe whole problem,’

was for me to convinee Nesseth to’ fight Sugar Hart and |

that that would straighten thimgs out, as far as Catho was

concerned. And Sica agreed there, too, He said. that T had

tiny head in a noose. and that was the only way Twas going

to get the thing straightened out. Was to grab hold of

Nesseth and make him take the fight with Sugar Hart.”

The following dav Nesseth called Gibson to complain of

the threats that had been receiv d. Gibson disclaimed re-

- sponsibility but, according to Nesseth, “Truman said, "Well,

awl the pressure can be relieved and. vou can also do, your

own Jackie Leonard a favor by saving his Club, if vou will

just agree to fight Sugar. Hart.’ And I told him they could

forget that, because I-had.better things in mind and |

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.f oe of the United States Court of Appeals)

wasn’t go'ng to fight Sugar Hart. We must have talked for

probably 15 minutes and Truman agreed that ‘he would call

“Norris and see what he could do about getting these people -

eut of town.”

On May 4, while Nesseth ana Leonard were in Leonard’ s

_oftiee, Palermo appeared and, shortly thereafter, Appellant

Dragna. Nesseth immediately left the room. Palermo, in

Leonard’s presence, then explained the problem to Dragna

and asked what-Dragna thought of it. According to Leon-

ard: “Dragna says, ‘Well, you are wrong, Jackie, You

are dealing with big people and your word should be your °

bond.” He savs, ‘After all, if your word is no good, then

vou are no ae in this game. Everything is dealt—vou

are dealing with real nice people and. big ‘people, and if

vour word is no good you are no good in this game.” ”

Dragne ‘inquired. about Nesseth; whether he did not live .

out his wav in West Covina and again whether he did not

have a wife and child. Later, according to Leonard, Paler--

mo stated: “*Well,-we ‘ave to make this Hart fight. At

least. if | ean go back and tell “The Old Man” *--meaning

Frank Carbe—tell him | have, the Hart fight. that will

take a lot af pressure off. I ean tell him vou cried and T

tried and at- least we have something accomplished.’ He:

said, ‘Il am going to leave, and he said, *T want you to

make sure things are taken care of” Dragna told me, he

cave. *¥on are right in the middle of this thing, Jack.” And

he said, ‘You better try to get it straightened out or,’ he

savs, ‘vou can be’ in-a lot of trouble.” ’

As with Sica, Leonard ‘understood that Dragna was con-

nected with the underworld and associated his appearance

with Carbo’s threat. Nesseth also testified that he under-

stood both Sica and Dragna’ were connected with the under-

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(Opinion of the United States Court of Appeals )

world. Dragna’s appearance. so upset him that he immedi-

ately. sought and obtained police protection.

On May 5 an induction coil connected with a tape re-

eording machine was placed beside Leonard’s home tele-

phone, With his consent, by the Los Angeles Police, and his

office was equipped with a concealed: "microphone.

The following dav Sica and Palermo called’on Leonard

and Nesseth at Leonard's office in an effort to persuade

Nesseth to agree to a fight with: Sugar Hart. The visitors

receiyed no satisfaction. As ‘Sica was! leaving, he leaned

over Leonard and, according to Leonard, whispered in his .

ear? “Jackie, vou dire it.” Nesseth confirmed that Sica had

whispered in, Leqnard’s ear as he was. leaving.

On May 7, in telephone conversation with, Gibson, Leon-

ard had reported that Nesseth was. still refusing a fight

with Hart. Gibson stated, “Well, it’s too bad. | could have

saved the elub if 1 could have made ‘that fight.”

On May . Gibson flew to Los Angeles with William

Daly, many asx an. unindieted eo-conspitator. Leonard was’

out of town and was telephoned by Gibsen, who adv ised that.

he had to return to Chicago’ but was leaving Daly there to

talk to Leonard.

On Mav 13, after Leonard had returned, Daly called

oy him at his office. He wanted to know what Leonard

was going to do about the money owed to Gibson. He said

Leonard was in “hell of a jam” both regarding his ‘elub’s

financial obligations and regarding Nesseth. He said:

“Carbo is really boiling.” He told Leonard t to ci all and see

him at his hotel the next day.

The following dav Leonard was equipped by the police

with a Minifon wire recording device and also with a porta-

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ble transmitting device. He then called on Daly. A lengthy

conversation ensued, all of-it taped.

- Aceording,to Daly, Gibson. was upset, saying he was in “a

jackpot” because he had allowed the title to get out of

“their” hands. He had accused Leonard.and Nesseth of

trying to destroy him, and had’ stated’ that instead “T'll

have them destroyed.” There was a discussion of a near

fatal assault om Ray Arcel, a @arbo-controlled manage"

who had asserted his independence. Daly explained , the

technique of assault :

“See what they do. They use a water pipe, see, you know,

regular lead water pipe. Lead pipe. And about that short.

About that thick. And they just get an ordinary ‘piece of

newspaper, see, newspaper don’t show fingerprints: Then

they take it and they’ wrap it just in-the newspaper, see

** * Just an ordinary piece pt paper, that’s all they ever

use. And you sitting in a erowtt, And they try te give you

two bats, and they kill you with two if they can. But they

whack vou twice and split your—-fracture your skull, and

knock you unconscious, and they just drop it, they can't—

thers’s.no heat. You ean’t-—-you haven't got-no weapen on

vou. Hf they said vou did it, what the hell, vou drop it-in a

crowd or cut in the street. They drop tt immediately, After

they do it they drop it. And after they drop it--the law:

ther’re proteeted by the flaw. They have to have witnesses.

They seen them come out and that’s the ‘guy, and’ that’s ,

what he used.” And later: “They used’ a couple of kids

from Boston to do it.” Leonard: “They always use profes-

sionals, guys from out of town.” Daly: “Yeah, they -were

kids.” Leonard: “Like hers, if they wanted Don and 1,

they're not going to use somebody that we know around

here.” Daly: "No. The Sicas weuld he home.”

»

l7a

eed. Opinion of the U nited States Court of Appeals)

Leonard inquired ‘as to why Sica was becoming inv olved

in something not his business. Daly, replied: “Weil then,

‘people in New York do them favors,”

they are going to handle him some * * *

plained of having to stay in Los Angeles.“ got a lot: of

things home to try to straighten out. But Truman says,

‘Wait ‘til Monday.’ He’s coming in Monday. What'll happeh

Monday, Jack?” |

way.” Daly com.

Leonard explained how he hoped to get financial aid ‘for

his elub from a San Franciseo promoter, Don Chargin,

and ‘stated that now Sica wanted to see Chargin. Daily

stated: “Oh, the ‘v'll gef somebody up around ‘San Francisco

to go see him, and tell him to lay off vou people. * * * You

‘know. we it'll make the guy think a little bit, too, vou

know.’

On June 4, Chargin was planning a trip from fen Fran

cisco to Los Angeles in connection with his negotiations

with Leonard to take over the failing Hol!vwood Boxing

and Wrestling Club. He received an anonymous telephone .

eall as to which he testified: “The call stated to stay out of

Hollywood and tat the ww knew my flight number ~~ also

that ‘vou saw what happened to Jack Leonard’ * * hs

Leonard had-received:a beating and had heen hospitalized.

In September, 1959, Leonard’s club failed ‘and went into

—bankruptey. Since Leonard covid no longer obtain nation-

ally known fighters, he quit the boxing business.

Also in September the indictment agai inst these appel-

lants:was returned. |

The indictment contained ten counts. Two of the counts

charged all of the appellants (together with “unindicted

¢O- annie William Daly ) with conspiracy : Count 1 with

and later: “TT don’t .

know what way thev’re-going to handle that Nesweth, but ©

18a

(Opinion of the United States Court of Appeals)

a conspiracy, to commit extortion ;* Count 9 with a conspir-

' ‘Paragraph 5 of this eount pails as 5 follows: .

“The objects of such conspiracy were to be accomplished

as follows: .

“a. The defendants Paul John € ‘arbo and Frank Paler-

mo, by use of threats of physical harm and violen¢e and

threats of economic loss and injury to the victims Donald

Paul Nesseth and Leonard Blakely, aka Jackie Leonard,

were to obtain monies representing a share of the em

earned by a professional prize fighter then engaged i

championship matches being nationally televised, to- oy

Donald Jordan, and to obtain control’ of the professional

activities of tue same Don Jordan by naming the opponents '

whom he would fight and also the “places where and con-

ditions under which he would engage in such boxing

matches.

“bh. “The defendants Paul John Carbo and Frank Paler-

mo intended to obtain said monies cand control by ‘and

with the consent of the victims Donald Paul Nesseth and

‘Leonard, Blakely without paying any consideration for the

monies and control so received. ~

“ce. It was a.further part of said conspiracy that defend-

— ants-would enlist the services of persons known to the sqid

victims to have underworld reputations and to possess .

' the necessary power to execute the conspiraters’ demands

by foree and violence; and, for that purpose did enlist ~

Joseph Siea and Louis Tom Dragna who were to personal-

ly contact Leonard Blakely and Donald Paul Nesseth and

obtain their agreement to ‘the conspirators’ said demands.

“d. It was an essential part of the conspiracy tliat de-

f ndant Tromay Gibson;. Jr.. who was an officer of the

International Boxing Club, Ine., ‘and the National Boxing

Enterprises, Inc., a major promoter of nationally televised

prize fights, and an influential figure ih ot! e¢ business as-

sociations, would use his power and authority to persuade

victims Donald Pau! -Nesseth and Leonard Blakely to ac-.

cede to the demands of the conspirators for control of the

prize fighter Don Jordan.”

°

*

19a

(Opinion of the United States Court of Appeals)

acy to transmit threats by means of interstate communi-

cations.” _

In eight counts Appellants-Carbo, Palermo and Sica were

charged with substantive offenses. Carbo and Palermo

were charged in Counts 3 and 2, respecfively, with stain-

ing the sum of $1,725.00 from Leonard .hrough threats .of

physical injury and violence. Palermo and Sica, in Count

4, were charged with attempts to coerce Nesseth through

fear and -threats of violence into giving up part of his

contractual control of Jordan by, signing a match with ~

Sugar Hart. Carbo and Palermo, in Counts 6, 7, >. 9 and 10,

were charged with the interstate transmission of threats 'to

injure Leonard and Nesseth.

-*Paragraph 3 of this count reads as folluws: .

“The objects of said conspiracy were to be accon#plished

as follows: \ |

“a. The defendants Paul John Carbo and Frank Paler-

mo were to transmit interstate telephone communications

cor.taining threats of physical harm and violence and threats

of economic loss and injury to victims Donald Paul Nesseth

and Leonard Blakely, aka Jackie Leonard, in an effort to

obtain monies representing a share of the purses earned

by a professional prize fighter then engaged in champion-

ship matches being nationally televised, to wit, Donald

Jordan, and control of the professional activities of the

saine Don Jordan by naming the opponents whom he would

fight and also the places where and conditions under which

he would engage in such boxing matches. . "

“b. The defendants Paul John Carbo and Frank Paler-

ino intended to obtain said monies and control by and_

with the consent of victims Donald Paul Nesseth aad Leon-

ard’ Blakely without payment of considerations for the

monies and control, so received.” Pld

“‘Subparagraphs ¢. and d. are substantially the same as

those set forth in footriote 1 as to Count T.

20a ;

(Opinion of the United States Court of Appeals)

By jury verdict all defendants were found guilty as.

charged. The following sentences were imposed: ;

Carbo: Imprisonment consecutively for twenty years

on Count 1 and five years on Count 3, a total of twenty-five

‘vears, plus a fine of $10,000.00." ioe

-alermo: ‘Imprisonment for fifteen vears on Count 1,

plus a fine of $10,000.00° ; / '

Sica: Imprisonment for twenty vears on Count 1, plus.

a fine.of $10,000.00." : pe oe

Dragna: Imprisonment on-Counts 1 and 5 for five

years each to run concurrently,

Gibson: Imprisonment on Counts l ane 5 for five vears

cach to run conenrrently, plus a fine of $10,000.00. Iin-

prisonment was then’ suspended and Gibson was placed

“on probation for a period of five years. |

". SUFFICIENCY OF THE INDICTMENTS

Appellants make several attacks oy the indictments.

.

First, it is contended that Counts 1 through 4 failed to

allege offenses cognizable in the federal courts because

*On Counts 5, 7 and 9, imprisonment consecutively tue

_ five years, a total of fifteen years, was made to run con-

; currently with the twenty- five years imposed for Counts

1 and ° .

‘On-Counts 2, 4 and 5, imprisonment consecutively for

tiv e years, a total of fifteen years, was made to run con-

-eurrently with the fifteen years imposed for Count 1.

-Likewire, imprisonment consecutively for five yeurs each

‘on Counts 6, 8 a1 10, a total of fifteen years, was made

to run conearrently.

*4 sentence of five years on Counts 4 and 5 was as wade to

run concurrently.

Ve’

Sa

| ) : Pla

(Opinion of the United States Court af Appeals)

‘there is po sufficient showing that the extortion charged

affected commerce. It is asserted: that neither a contract

between one fighter and. his manager nor a share of. the

tighter’s purse constitutes commerce, - |

Under the Hobbs Act (as distinguished from the Sherman

Act) it is not necessary that the subject. of the extortion

constitute. commerce. All that is required: is-that trade or

commerce be affected ov extortion ‘in any way-or degree.”

The quantum of ‘effect under the Hobbs Act is thus “en

tirely different from that required under the ‘Sherman ..

Act i

This is clearly pointed out in United States vs. ‘sii.

S.D.N.Y., 1956, 19 PLR. i). 426, 428, denving a motion to dis-

miss an indictment for failure to’ allege with sufficient

_prrtic ‘ularity the manner in which the claimed extortion af- >

"Jected commerce. There it was stated:

“Whereas undey that ‘Act it may be that a court must

find that the acts complained of have a direct. and

substantial effect on interstate tea. under the

subject: statute there is no-need for such oa finding.

The statute provides that effect im tany way or degree’

is sufficient. Congress itself has concluded -that any

effect upon interstate commerce im any degree caused

hy extortion or: conspiracy contemplating exfortion

is in atself substantial. The substantiality of the effect

ix not jeff to judicial determination. 7 *

quite. understandably might prohibit extortion or con

Congress

spiracies. based on extortion which affect interstate

commerce in any degree, Their corrosive quality is not

——— -- -———- —_--——- a

*See eaiieie Ve. United States, 8 Cir, 1954, O14 F. 2d.

441, 445, cert. den., 348 UIS. 856 (1954).° :

z=

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“A ( Opinion of the United States Court vf Appeals) —

| likely % be subject ty quantitative measurement fo

the same ‘extent as the economic effect of combinations,

i <, e restraint of. trade.” = MP gs :

can

la United States vs. ee Boxing Club, “1954.

”348 U.S. 236, it was held that the business of promotion

vA of préfessiond, championship boxing contests and the sell- *

ing of rights to televise, ison fw anv film sucli ‘contests

for interstate transmission onstituted commenes ar ae

the Sherman Ags - : . eae

fected. in some degree bi éxtortion to obtain control of a

“champion fighter. A sufficient effect .on commerce under

* the Hobbs Act. has “then been charged. oe

Purther. attac king the sufficiency’ of Counts "1 through

4 to charge a federal Affense, appellants, contend that the

Hobbs Act is vague and uncertain ingtts application to the

* hoxing business and ‘may {fot constitutionally He applied

“sary effect upon commerce results.”

, teethe charged acts of extortion.

-~Undeniably the act »was. partienlarly: ‘aimed at labor

| techeneitinal but he its terms it is not so limited.” Racke-

teering in other areas is clearly included. The language .

. : Heng it can hardly .be denied that such commerce 1s af-

of the statute provides. fair wa pine and adequate notice -

that extortion, in any area is inc ‘luded'se long as th e neces-

Th peat diac ‘of the bill i Sette: that while

a

most.of fhe drafting problems presente by the bill related as .

"tp it. eoverage of labor activities, the bill was broadly

conceived of as part of a legislative plan to deter pro-

.. fessio a S.Rep. No. 1440, 73d Congrortngs

oan .)

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2 Opinion of he United States Court of Appeals)

° ie

: It is ‘cual that Counts 1 ona 5 farl to weet’ ie re-

P sag casa of Rule 7(e), F.R-Cr.P., that they provid® “a

plain, toncise and definite statement of the essential facts -

Pionstituting the offense charged.” It is asserted that they

do fot allege how; interstate commerce wae go be, delay ed,

obstructed or affected hy the charged conspiracy; or how

the threats charged could yield control of Jordan ora share #5

_ of his, purs®; on what agency of interstate eommerce was .

to be us@d to convey tHe alleged threats; or between what

points these threats were to - communicated.

it ix not, necessary to glean such evidentiary detail.”

‘Subparagraph 3 3 of each count clearly alleged the scheme

for accomplishing the criminal goals of the conspiracy, Jn-

cluding reference to the role each of the five defendants

was to ah in the attainment of these goals. This is suf-

ficient 22

It is.also contended that. the substantive counts relating

‘to the thré&tening congmunications did-not charge offenses

sinee they failed to contain any allegation determining

venue. ge Foe ge ne , &

Rule 7(¢) does not require sl to he pléadwd. Sinee aon

-js waivable,’’ it is not an ‘essential fact constituting the of-

fense charged.” ‘Defence have the, e fright to be tried in

‘

is} - . -.

«-

* a

“Wong Tai vs. “United States, 1927, 273 US. 77.;

®Schino vs. United fates, 9 Cir., 1954, 209 F fot 67,

_ 69, cert. den., 1954, 347( US. 937. -

Rodd vs. United States, 9 Cin, 1948,.165 F. ad

“See Rule oe? F. R.Cr. P.

; Cd

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——

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e

% 4

( Opinion * the United States _— of y ppeals) =

Daa

thie” ‘proper forum, not the right to he: charged with thie

proper venue.” eae ie :

oy»

In this case a bill of particulars giving full details re-

“gpecting venue was, filed one mpnth after the indictment |

was eeacstiea There was then no ssibility of prejudicial

surprise.” Aes

The contention that” $195] 1s not within the. power” of E

" ongress and @ontravenes the Tenth Amendment was pe oF

“futed in Nick vs. U nited States, & Cir., 1941, 122 F, 2d- 660,

cert. den, 314. U.S. 687, reh. den., 314 U.S. 715, .reh. Sen. ’

316 U.S. 710 (1942). The conepirery and substantive of-

| fenses ales $1951 dq not merge.” Nor is the‘ §371 con- ;

Gyiracy€dentical, with the §1951 conspiracy. re

We. conclude that in all’ respects of w chien the appellants |

‘complain, the indictments’ sufficiently charge the federal

offenses to, which they were > directed; - re pS

SCFF IC IENCY OF THE KY IDENC E

“All defendants assert a lack of substantial ev idence of

guilt upon all ‘counts in which. they were charged. Our

diseussion of this contention is, of course, subject to our

later discussion ‘of other assignments of error in which:

attack is made upon specific portions of the record.

“Suggestions by Carbo and Gibson that they were not

tried in-the. proper state and district are not open to con-

sideration since no motion for ong of venve under Rule

21(b) was, made below.

‘6(jompare Bratton vs United States, 10 ‘ia 1934, 73 F.

2d 795. -

Callanan vs. United States, 1961, 364 Uv. S. 587.

, . stat . ms — »

ue eoe niga panei enedyerasiienasons Far

.Y { “ig p

re Wo a

pen (pinion oft the. United States. Cc ourt of Appeals)

oe)

Accepting the ‘facts and the testimony as we have re.

cited them, the contentions of Carbo, Palermo and Sica 4

may be summarily dismissed as to the substantive counts!

Their contentions are founded in large’ part upon ba =

- attack gn the credibility of Leonard. We shall not dine.

turb the. jury’s determination in this respect.

Xe

amply sufficient as tosthese threp appellants. Their active

and joint participation in overt acts which themselves con-

stituted substantive offenses leaves little doubt but that

they knowingly acted in concert. and pursuant fo peen.

@ e -

Likewise, ax to the Count 5 coyspiracy there can be

no doubt but that Carbo and Palermo knowingly vacted in

concert and pursuant 4 to o plan. a : ae

‘Sica and Dragna entered, the plot before the interstate

threats fad. been communicated and the: conspiracy fully

consummated, We find no evidence’ that: ‘they had any

_knowledge of the plot at the time of the interstate threats

nor anything from Which an inference of conspiratorial

assoc! iation or agreement at that time might be inferred.

The jury’s verdict upon Count. 5 should have been set

aside as to these appellants. As, to Appellant Sica the

court’s failure to do. this is without prejudice in the light

of, his twenty- vear sentence imposed for Count 1 and the

concurrent fivesvear sentence upon Count 4."

, ' ‘

< . - had .

As to Appellant Dragna, ‘after careful consideration ot

the reeord we have concluded that there is. no sufficient

evidence to hold him guilty upon Count 1. The only evi-

e 4

“See Hirabayashi vs. United States, 1943, 320 US. 81...

=

“~~

-. Likewise, as to the Count "1 conspiracy v the. evidence. is

As to the Count 5 conspiracy Me ‘re is no evidenge that

|

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5 mes .

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"(Opinion of the United States Court of App wale).

dence ‘is as to the oécasion on May 4, 1959, which we. have

recounted, when Dragna appeared with Palermo and talk.

ed: to Leonard’ (plus ‘evidence that Dragna and Palermo

had been seen fpgether a day or so earlier). On this occa-

sion Dragna was simply asked what he th@ught and gave ©

his opinion. Leonard, in testifying before the California

Athletie Commission, described Dragna’s participation ax

follows. “He didn’t say anything, no threats. No—in facts |

he.was a very good gentlenian there. He did very - little

talking. Listened.” *- Ci rene ;

There was nothing said which would. suggest that Drag-

na’ was an interested party. There was nothing other than .

~ his presence with Palermo: which could give rise to any. -

_ ginistér implications that he was lending’ his active sup-

port to a program of violence. The United States, suggests

that those. having an ‘underworld reputation have the

burden of refraining from acting in such a fashion (or,,

it would seem, from being seen jn association with others )

when it might be construed as evincing an interested, par-

ticipationsor a threat of violence. We cannot agree. Leou-

‘apd may have, been? wholly justified in the conclusions he

drew, but. it does not follow that Dragna may be held

-

criminally: responsible for those conclusions?

- As to Appellant Dragna the district ‘court must be: re- |

versed and the sentence set aside.

“sAs to Appellant=Gibson, charged ‘in the ‘conspiracy

cdunts, it must be noted that there are in fact. two distinct

eonspiracies involved in the facts of the case. (1) The

underlying conspiracy to gain control of Jordan. For busi-

ness reasons of his own, Gibson was interested in further-

ing Carbo’s ends in this respect and it is elear that the

evidence is sufficient to connect him with this underlying

on

a

>.

8 Opinion of the United States s Coit of Somes )

conspiracy. (2) The iavoail conspiracies to atcomplish

~ the undertyi ing purpose by. extortien and threatening com-_

munications. 7 me,

The Uv aifod States suggests that ‘eid of the first” is

_ -sufficient without more to constitute proof of the second.

‘This is vigorously disputed by Gibson; who contends with.

justification that the existence of business relations with

Carbo is in itself. wholly consistent “a innocence of the .

charged donspiraci ies.

The United States > further emphasizes the - fact’ that

Gibsén himself was guilty of acts of economie coercion in

making it efear on at least two occasions that should Jor--

dan sign with Sugar ‘Hart Leonard’s economic difficulties —

would be over, but that unless sieli a fight took place Gib-

son W ould le.unable to save the Hollywood pening and

W restling Club. : 7 Awe er .

There’ ean be little doubt. that Gibson had. his own

business refisons entirely apart from those cf Carbo and

. Paler mo for wishing such. a fight to take place. The ques-

tion is whether the record can support a determination

that for these independent business reasons Gibson he-

came a party to the Carho-Palermo scheme for achiev) ne

control-ofJerdan through extortion and thrgats. In/qur

view it does through proof of Gibson’s connection ‘with:

Daly, :

Gibsan- brought Daly he Los hiustalen in order to confer

with Leonard and, delegated Daly to act as his representa-

tive in discussions with Leonard. Gibson advised Leonard

fo this effect. One may logically conclude that in what Daly

_ said, he. spoke for Gibson and what he said related to.

P : a ee

wy

4

Carbo and Palermo and was calculated to frighten Leon-

‘ard into renewed efforts with Nesseth.

SERIE ROU CD

_ t oq: .

RTE SE NR ae ape Stesaak 0" ne} a bata pcs Pore * : .

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28 te . ¢ ae e

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(Opinion of the United States Court of A ppeals) _

Nccordingly, we conclude, subject to, later discussion ~

‘of specific points, that while judgment must be reversed as

to Appellant Dragna the evidence. is sufficient to support -

the jury verdict as to “A@pellants- ‘Carbo, - Palermo , and

. Gibson and, as to Appellant Sica, the verdict on Counts

1 and 4.

DECL ARATIONS OF co: CONSPIRAT( RS

\ ‘substantial part ‘of the provf on the conspiracy counts .

consisted in what various of the .co-conspirators out of -

‘court had said: about their fellow conspirators. All ap-

pe ants have most. vigorously protested the admission of

_such declaratiom: as hearsay and have contended that the

"district court failed adequately to instruct the jury re-

“ specting the conditions under which suck#declarations, may

he used against conspirators other than the declarant.

it is well established that the declarations. of ‘one-con- .

spirator in furtherance of the objects of the conspiracy,

‘made to a third “party, ‘are admissible against

- conspirators.”®

t is also a established, however, that such

a -

tions are adinissible, over the objection of a co-conspira- Sa.

*tor who was not present when they were made, only if

“ there is proof independent of the declaration that he is—

connected ' wits the congpiracy. Glasser vs. U nited ‘States,

1942, 315 U.S. 60, 75: “Otherwise hearsay. would lift

itself -by its own bootstraps to the level of ‘Competent :

ev idence.”

“Logan vs. United ‘States, 1892, 144 USS. 263; 309.

2:

re ie . i is

/ | » es a ig

(Opinion of the United States Court of Appeals)

The following instruction was offered and was re jected *

“¥ou will recall that testimony of acts ‘and. state.

nents made. by alleged co- -conspirators in the alse nce

of a defendant was received ‘on a tentative’ basis in

_evidenee. Such testimony was received subject to in-

dependent proof of othe existence of the conspiracy

. and ‘the’ abegnt’ defendant’s knowing participation. in

the conspiracy. If you do not find, on indep ndent

proof, that & conspiracy existed and the. absent de-

fe idant knowingly participated: i in the conspiracy, the

’ *

innocence_of the defendant Gibson you may. not

*°T he district court in its charge to the jury did deal

san. It charged:

“You are instructed that in sascanegias the fault or

asider

the words or conduct of any other defendant “not: irr. ‘the

“presence of Mr. Gibson tinless you find that the prosecu-

tion has prov ed beyond a reasonable ‘doubt that. Mr. Gib-

son entered into,a conspifacy with that defendant as

charged in the indictment, and that the words of ‘the, other

. defendant were spoken ine aid of and to farther. thie par.

‘pose of the conspirary.”

___Also;_in admitting certain” “declarations of Appetiont

Palermo, the court stated:. - - ,

“I will tell: the jury that, of course, when any one of

a group of conspirators makes a statement in further-.

ance of the purpose of the conspiracy, that is binding on

all the conspirators. But that rule only applies if there —

are CO -Conspirators. >

“Now, béfore you" ‘can hold any one of these Aidaniante

to be bou by this conversation with Mr. r. Palermo, if.

‘you believe there _was_such—d—eonversatior ion, it would be

___ ——-necessary for you to find from other ‘evidence that such

person, as to whom you are making applicable that con-

versation, ” in fact a conspirator.”

<i

=<

_ with the substance of this.instruction “s to Appellant. Gib- .-

- (Opinion of the United States Court of Appea's)

tentative hasis is destroyed and all such testimony =

must be ignored as to him. | ete

g 2 “4 defendant’s connection with a conspiracy must

be.established beyond a reasonable doubt, accordingly,

by his own conduct and his own statements or declara*

tions.” Se |

We cannot accept appellants’ view -of the law .as set

- forth in’ the proposed instructions. ‘The declarations, as

to defendants ather than the declarant, constitute hearsay.

Yet with-a proper: foundation they would qualify under —

the well recognized exception which permits the introduc- —

tion of declarations of a co-conspirator. The problem af

ie. eo-conspiratorial declarations, then, is one of the admis-

een © - sibility of evidence under,.a well recognized exception ‘to’

- the hearsay rule. It is not a substantive question as to the

.

e°

aiilind

. = nm \

? i)

ance of -tlie conspiracy 5 second: that jt was made ‘during

7

dependent proof of the existende of the conspiracy. and

< .a o of the connection of the declarant and’ the defendant with

eee authority, infra, footnote 22; Uniform Rules of

pe sd _ Evidence, 63(9); Model Code of Evidence, Rule 508(b):

' Only the third element is controverted here, save as may ©

et . hereafter be discussed.

“The necessaTy” foundation consists of “three distinct .

prerequisites. First: that the declaration is in further- .

the pendency of the conspiracy’ third: that there is in-

. hd Pm

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(Opmien of the Unied States Court “ Appeals)

- qualitative sufficiency of the evidence necessary to prove

the existence of a conspiracy.” :

The situation in rendered pene an by -the. fact that

the admissibility of this evidence’ (concededly . relevant.

bat. challenged under a technical evidentiary rule of com.

vy petence) depends upon a disputed ‘prelimigary question

: of fact which coincides with the ultimate jury question

.°... Upon the merits.** The declarations are admissible. against

the defendants if they are co-conspirators. If they are co-

conspirators they are guilty.«The problem presented to us

is whether the preliminary question (upon the 1s toe =

w

.

ee Ve co Breer ® 1m

é

, of which‘ only independent evidence is*available) is to

resolved by the jury or by the -jtidge. Appellants’ -

: cof the law, asset forth in the proposed instructions, ds,

a _—— that the preliminary question is to be resolved by the

& _ jury ‘uygon proof bey yond a reasonable doubt. Yo

p> ° ' oo / 5

Qe See: 4 Wigmore, ’ Bividenee - (ad/ ‘7 . 1940) 61079: Ree

~ génerally: Developmetits in. the p Ammncta Conspir:

hey, 72 Harv. L. Rev. 920, 984-989: (1959); Levie, Hear-

say: and Conspiraey, 52 Michi. L. Rev. 1159 (1954):.

In analyzing this questigh every ease that has come to

our attention has done sggrom the point, of view of wheth-" .

~ er the taclarations wery ‘admissible” or Sceompetént” evi-.

dence. Most recently if Wong Sun vs. United States, 1963,

"ES... it, the Supreine Court has recognized that

“the rule: which ‘regulates the use of out-of-court. state-

ments is one of. admj ssibility, rather than siniply of weight,

of the ecu aul - rs oa

See discussion, Maguire and Epstein, Preliminary

Questions of Fact Determining the Admissibility of Evi I-

denres, hati 40 Harv. ‘L: Rev. 392, 415.

a

a eee or : xs ‘ &

rid : e

ae if ; ; . . He :

sre ORR Gr te 1 Re TL RE A ERS OS. gepnines (2 Pht Hi Pies ATK sie yi ts S. ee ne ee nites

> a

o°

af

or:

“308

:

=. Po

«

‘(Opinion on the. United States Court of. Appeals) °

Yet if by _snbeiiennt evidence the defendant's position

as aeo-conspirator. is to be established. by the jury upon

“their judgment beyond a reasonable doubt, there is no o¢c-

casion ever to resort to.the declarations. at all. “The dis-

-. trict court in effect will have-told the jury, “Y ouginay

not

consider this evidence unless. you first find the de-

fendant. —

% °

The point is made in United States, Ys. “Dennis, 9 Cir,

1950, 183 F. 2d 201, 220.231, affirmed 19: a, 341 US. 491, ¥

whert itis stated: a"

“Tt is difficult to see w hat value the declarations could —

- have. as proof. of the conspiracy, if before using them.

the jury had to be satisfied that the declarant and the *

’ aecused were ‘engaged in the conspiracy charged ; for |

-- upon that hy pothesis the declarations: “would merely

serve fo confirm what the jury had already decided:

in strict logic these. instructions ‘in effect altogether :

withdrew the declarations from the jury, and it was

idle to put them in at all. <a

In Rowley vs. Braly, 1996, Texas Civil Appeals, 286

Ss. W. 241, 245, the same thought is expressed: ;

407

“If the conspiracy is establighed, then what pur-

a

pose can the declarations -and statements introduced ~

in: evidence ” gereet tho. —* Tf this {rule giving the. ..

an ag judge] is not correct, of: what

avail w the broof of such declarations he to the .

ane offering them.”

Finally; ; ire and Epstein, mae footnote 23, at niet’

(their fbotrote 47), agree that: /

“If the other evidence satisfied the’ jury that the

conspiracy has’ been entered imto, the cosconspirator’s

_ declarations can fulfill no weefel function.”

oe

oe?

«

- -€ Opinion of the United States Coufi ‘a a )

‘|. We find the quoted authorities persuasive, “To accept the\. A, oe

problem as one of > admissibility of evidence is to recog-

‘nize that the declaratjons, if admissible, ‘shall be consid

ered by.the jury in reaching Ns determination upon the

issue of innocence or guilt. It will no@ do to tell the jury

_ that “t must rei veh its determination first: oe ae eta eea x aa

~The rule of law for whieh,’ appellants ‘contend would, | - a

‘then, effectively condemn this ‘entire e) xeéption to the hear

say’ rule. This result we must reject. ,

... Nor,could this exception ‘be rescued by giving the phe.

liminary question: to the jury to Ise decided b® it upon the |

basis of a prima facie casé rather than proof: -beyotid a

; reasonable doubt.’ The jury is-already concerned: with the ,

:, evidence-weighing standards involved in: proof beyond a

‘reasonable doubt: To. expect them not. only to compart-

mentalize the "ev idence, separating ‘that produced -by the

‘declardtions from all other; but as well to apply. te the

independent evidence the entirely different evidence-weigh--

ing standards required of a prima facie case, is to. expect eek

the impossible. As stated 1 in Denxis, supra at page 33 ."

“Indeed | it is a practical! impossibility for laymen ae J

and for that matter for "most judges to keep _ fl cle

minds i in the isolated ‘compartments that this requires.”

e

Indeed, the injection of the standards of a prima facie Ve

_@¢ase into a jury determination: (even though carefully ee Ny

isolated, by instructions, from the ultimate’ determination +” eM |

of guilt) might wery well be fo und te eause confusion as: oe

r to standards of praot highly prejudicial to the defendant. “>

“Mherefore, we adopt in this situation the orthodox pre-

-vailing view of the aljocation of functions hetween judge ,.

and jury, which assigns to- the judge. decisions upon pre-

R “tirataary questions of feet determinative of the admis-

“ ———

mate ens

7 ince

34a ee ;

( Opinion of the United States Court of f Appeal :

sibility ef. evidence histone under technical evidentiary

rules.*! : he ee eas a

asc , . \

Our alae is. enigoited ‘b¥ language in U nited States

i ae, supra at page: 231:

“The jaw is indeed not wholly clear as to who must

-© detide Whether such a-declaration may: be. used; but

we-think that the better doctrine is Ahat the judge °

is always to, decide, as concededly he generally must.

- any issues of fact on which the competence of évi-

dence depends, and that, if he decides it to be com-

petent, he is to leave it fo the jury to use like any

‘other evidence, without instructing them to. consider -

it as proof only after they too have decided a: pee:

liminary issue which alone makes it competent.”

Itis for the judge then,. and not the jury, to determine

“the admisSbility of the declarations. In making this detear-

_gnination the test is not whether the defendants’ connec-

tion had by independent evidence been proved beyond a

reasonable doubt, but whether, accepting the. independent

evidence as‘ ¢redible, the judge’ is satisfied that a prirna

facie ¢ase (one which “would support a. finding) . ‘has been

“made. Thereafter it is the jury’s function to determine .

whether the evidence, including the declarations, is ered-

‘ible and convincing: beyond a reasonable doubt. }

The trial judige’s s finding on admissibility in no way re;

stricts the jury’s inquiry into guilt or itfnocence. As stated j

in United ‘States v. Dennis, supra at page: 231, quoting

——

“See Maguire-and-Hpstein, supra:— —

es

from United States v. Pagliesi, 2 Cir., 1945, 153 F. aa 497, sf

500: ay

4 5 a . -

4,

. . . es

_

* Opinion of the United State s Court of A ppeals)

“<*The admissibility of the wife’s declarations in the

. case at bar was for the: judge, and the fact ‘that the |

- jury later acquitted - her. was - irrelevant. “The issne

hefore him was altogether different from that hefore

‘them: he had only to decide-whether, if the jury chose

@ te believe. the witnesses, Pugliesi and his wife were

' engaged in a. joint undertaking; they had to decide

Whether they believed the witnesses beyond a doubt.’

4 Node “ouct0sion permits the jury to act upon

hearsay, because they may be satisfied of the ‘joint

' undertaking’ only because of the declaration; but it

often happens that hearsay is competent, and this is .

the only practicable way to deal with the question.”

tt must be conceded that in many cases instructions such -

‘as that, proposed by appellants have been held. proper.

We know of no case save‘ one,” however, in whieh the:

‘failure to give such an instruction has been held ‘error.

=

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Dea tes a eprrage

oe

* °

——

om —— a

; “In Sehmeller vs: U nitéd States, 4 Cir, 1944, 143, F. 2d

% 544, hearsay documents had been admitted: in absénce of

an establishment of’ a’ prima facie. case by -indepe1 ndent

evidence..The court agreed with defendants. ‘that the-jury

~ should, not rightly have considered the hearsay: evidence,

‘but ifistead of nofiiie error .in the judge's - -failhre to re-

‘

. move the evidence: from jury consideration by An. erasure —

instruction, when the'necessary showing ha@ not been made,

the. court placed | the blame on the judge’s failure to in- |

struct the jury to try the admissibility point for them- .—

selves. We. cannot agree with .this ‘solution. When no ~

prima “facie case is made out, the rights of the defendants.

can hardly .be protected’ by permitting the jury to find

that the ev idence Was nonetheless admisSible.

—™- e

: 4

g aie a —_

at a 36a: - s - |

(Opinion of the United States 6 Court bssccies . x,

- Cases cited by ‘appellant as. holdin: to this effect we find -

distinguishable.* t yk -

Appellants assert that there was a lack of a prima facie

| .euse rade: out by independent evidence and that the dee-

a. Re he larations were inadmissible for. this, reason. We eannot*

‘ “agree, T here was ample as toe: ach appellant, as the dis-

triet CONFT on motion for: new trial noted.

. *£

We conclude that it Was not error to adit against the «*

ayy pellants the die ‘larations of their coe onspirators, NOL

ie | +o#tr fal to give the requested instruction, ;

"2 ELECTRONIC RECORDINGS, AS CEVIDENCE

: Three. electronic retordtilys of hoa A ee were re-

’ é

Cafe in- ev idence over appellants’ objectjon. .

ee se

- e |

The Daly-Leonard conversation om May 14, ig. was fe 7%

c@rded by two independent methods. Leonard was equipped

with a Minifon, a miniature wire recording device. The

“wire retording made. on Leonard’s person ‘by this method .

was received in evidence. Leonard also was equipped with

>

a a miniature radio transmitter. The conversation was pick-

éd up ina neighboring room, through. a radio regeiver — -

and was there recorded on tape.

Appellants contend/that. these. vihibits were ‘nniniaaible

sinee they were seeurkd. in. violation of the F ourth Amend-

i"?

t

a: ante ceeine gkeeaaiinoasabis

“Lutwak vs. Unit: ‘a States, 1953, 344 Us. 601,* dealt as

.- 8 ~ with declarations not in furtherance of the conspiracy, — —

‘oP w hich, it is well-recognized, are limited in their applica-

| l “tion td the declarer alone. Oras vs. United States, 9 Cir.,

. 1923, 67 F. 2d°463, where an instruction was held erron-

eous, involved lack of.a prima’ facie ease aliunde the dee-

-laration. .° |; ‘ = °

@©

’

«

(ie . »

® .

as oa ‘ 2

. 0"; gowd see ates it heya ir gh

ASMA Ty EEO

Se at . ' 37a

(Opinion of the United States Court of ey

“ment. They assert that Leonard obtained access to Daly’ >

room under false pretenses: amounting to an unl@wful

search and seizure. ‘

We have held to the contrary upon this point in Todiseo -

. United peng 9 Cir. 1961, 398 FF. 2d 208, cert. den.,

oom 368 US. 489. Appelfants request us tp re-examine

our i in that case and overrule it. We decline and:

adhere to our opinion as there expressed.”

a .

Appellants further claim that these exhibits were ‘in-

admissible heeduse secured contrary to 47 U.S.C. §301,.

w hich provides that “no person shall use or operate. any

apparatus’ for the transmission of * * * communications :

eee © by radio °° ° except ° ° ° with a license in that

behalf * °°." _— Leonard had no license, “no policy

* against sihental in of evidence séottted by the radio oper

*

ation, can Je said to arise from -sue th lack.” ’ Podisco Vs. °

'p. _

United States, oe at page 211.

id

Qn May 5; 1959, ‘Palermo telephoned Leonard. at his

honfe and attempted to persuade him to come to a restau,

rant where Palermo anil Sica were waiting for hin.

Palermo told Leonard that. he had been contaeted by Carhe

sand that he ‘and Leonard had to place a eal to. ou

son, This conversation with Palermo was recorded -

Leonard with the aid of a Los Angeles police pied

through an induction, coil placed pone Leonard's home

‘telephone. | :

© Appellants contend that this recording was indamissible

e.

°

“Accordingly, we tind it unnecessary to disenss the ques- ”

tion of ‘vhether these appellants have standing to assert

a violation of Daly’s constitutional rights.

oes

_

¢

ww

Me Ce et | |

(Opinion. of the United States Court of Appeals )

in evidence since it constituted a violation of 47 U.S.C.

8 §6052" We disagree.

In Rathbun vs. United States, 1957, 350 1.5. 107, it.

was held that the contents of a conversation overheard on.

é rae

a regularly used telephone extension with the conse ot

one party to the conversation did not constitute. an unau-

thorized interception.

Appellants would distinguish Rathbun upon the. ground -

that use of an induction coil constitutes, mechanfealty, a

physical interception which is not the case with a regularly

used extension phone. Again we disagree, Ag. the record

demonstrates, the ‘induction coil is placed against. the

side of the telephone instrument where it serves as a

listening device much in the nature of a tuning fork. There

is no physical connection with or interruption of the tele-

phone electrical circuit.” .

ins cts Sart AE SEE CENT

zMee “* *

. = ° @

* no person not being authorized by the sender

shall intercept any communication and divulge or, publish

the existence, contents, substance, purport, effe¢t:or mean-

‘ing of such intercepted comnfunication to any person * * *

and no person’ having received such intercepted com--

munication or havingebecome acquainted with ‘the con-

tents, substance, purport, effect, or meaning of the same

or any part thereof, knowing that such information was

so obtained, shall divulge or publish the existence, con-°

tents, substanee, purpose, effect,-or meaning. of the same

- or any part thereof, or use the same or any information

therein contained. for his own benefit, or for the benefit

of another not entitled thereto Pe oa

Appellants further: Suggest that use of the induction

coil violat@®s some regulation of the Federal Communica-

tions Commission. No objection on this basis was made at

trial and we are not referred to the regulation in question.

’

MRR T RY eats Ce a EP eR TRIES gy

(Opinion of the United States Court of Appeals)

But further, we do not understand that the mechanical

nature of the method of overhearing is now to be the. guide-

post in this area. The controlling principles, it would seem,

are

5 Todiseo.

‘substantially the same as those which guided us in

In’ Rathbun, at page 110,°it is * stated:

“The clear inference [from the language of S605] -

.is that one entitled to receive the communication may

use it for his own benefit or have another use it for

him. The communication itself is {ot privileged, and

one party may not foree the other to seeréey merely _

- by using a telephoné. It has been conéeded by. those

W he heliev e the conduct here violates Section 605 that

ither party may. record the conversation and publish

The conduct of the party would differ in né way if -

sates? of repeating the message he held’ out his

handset so that another could hear out of it. We see

no distinction between that sort of action and: per-

“initting an outsider to use an extension tele ‘phone fors

the. same, purpose. wf

‘We find no distinetion between ‘holding out the handset

and permitting an outsider 1 to hear through the use of an

induction coil.“

Nor, does the reeording -of this legally overheard eon-

versation render sie > overhearing ‘and divu Ixing of the con-

versation improper.

=

v

“See Ferguson vs. United States, 10 Cir., 1962, 307

KF. 2d 787: Carnes vs. United States, 5 Cir’ 1962, 295 F.

2d’ 598, cert. den., 1962, 369 U.S. 861.

.

1 arnes vs, United States, supra, at page 602; see also

Hall vs. United States, 5. Cir. -1962, 308 F. 2d 266, cert.

den.,

1963.

40a. ; 2 é k “ey ° :

(Opin ‘of the United Statea Court of Appeals)

We edifelude that it was not error. to receive these

recordings in evidence.

a . ae

SICA’S UNDERWORLD REPUTATION.

Sica moved to dismiss the indictment against him

(Counts 1 and 5) for the reason that he was unduly preju-

diced by the charge in Paragraph 3(¢) (see footnofes 4 and

5) that the conspiracy contemplated the use of “persons

known to said vietim to have underworld reputations and

to possess the necessary power to execute the conspirators’

‘demands by force and violence” and the gnlistment of Sica

for this purpose. The motion was denied. Sica also object-

ed @o the introduction of testimony by Leonard and Nes-

seth to the effect that by reputation the¥ knew of Siea as

an “underworld” man and-a *strong-arm” man. The ob-

jection was overruled. Sica assigns error in these respects.

—* e p 2

In discussing the admissibility of evidence of bad moral

character the: Supreme Court in Michelson vs. United -

States, 1948, 335 U.S. 469, 475, states:

“Courts that follow: the common-law tradition al-

most unanimously have come to disaélow resort by the

“prosecution to any kind of evidence of a defendant's i

. evil character te establish. a probability of Ws guilt.

Not that theTaw invests the defendant with a presump-

tion of good character, Greer vs. United States, 245

U.S. 559, but it simply closes the whole matter of.

character, disposition: and reputation on the prosecu-

-tion’s ease-in-chief. The state may not show defend-

q .

ee ant’s prior trouble with the law, specific criminal acts,

or ill name among his neighbors, even though such

~ facts might logically he persuasive that he is by ‘pro-

| pensity a probable perpetrator of the ° crime. The in-

quiry is not rejected because character is irrelevant ;

=

3

6

QW

PRCT Ae aa the eS a. +

* da

( Opinion of the vanen States Cotrt of ee

° on the contrary, it is said to weigh too much with the

jury and to so ‘overpergpade them as to prejudge one.

with a bad general record and detiy him a fair oppor-

tunity to defend against a particular charge. Fhe over-. -

riding policy of exeluding such’ evidence, despite its

< admitted' probative value,: ‘is the practical experience

that its disallowance tends to prevent confusion of is-

sues, anfair surprise and undue prejudice. _

The subjects of confusion of issues and unfair surprise

will be :diseussed later,

Whether in this case prejudice was undue would seem to

us to depend upon the purpose served by the charge, and

the issue to which the prejudicial evidence was relevant,

and a consideration of the probability of harm to the-de-

-fendant in the light of these facts.»

The nature of Sica’s reputation was -not introduced into

the case, for the purpose ofecharacterizing him as a bad

man likely to resort to the conduct with which he is charged,

oy qhis was not the source of its reley vance,

5 ee the-prosecition relied on the ania of Siea

as a probative fact’ enabling the jw jury. to infer that Siew —-

had. inteswened—-with-beonard. and > Nesseth knowing that «:

_ his presence would instill fear in them and intending. to

manipulate this fear for the benefit of Carbo and Palerm 0:

-and further, to conclude that C arbo and Palermos had se-

cured’ Sica’s participation - with’ full realization that his

effectiveness was based upon the fear his reputation could

inspire in the Victims.

.

4

See ae 1 Wigmore, Evidence, 3d Ed., 1940, §§ 55, 57:

Uniform Rules of Evidence, Rule 47; a Code of Evi-

dence, Rule ene

2)

/

ao

42a

= Ft Opinion of. the United States Court of Appeals)

In cases of extorfion based upon fear of violetioe ie

facts of fear, actual or anticipated, ‘and of’ its reasonable-

_ness, are vital factors. To prove a substantive act of ex-

tortign it is essential to shew the generation of fear in the

victim." To prove. a substantive act of attempted extortion

it is necessary to prove an attempt to instill fyar. ‘To prove

a conspiracy to extort.it is necessary toeshowat plan ‘to in-

still fear.

Here Sica stood in the position of a dangerous weapon

to be used to strike fear into the hearts of Leonard and

Nesseth. It was part of the prosecution’s case to eharge

and to prov e tht the conspirators considered Sica to 6e-

eupy this position. That Leonard and Nesseth considered

him tébe dangerous and that fear reasonably resulted

from his appeatance because of his reputation constituted

relevant facts upon this part of the’ prosecution's ‘case.

“* ** there is\a rational connection between the existence.

of the- criminal agreement—‘the partnership ‘in crime’ -

and the: fact that the acts upon which the conspirators

agreed, when earried out, had the expected effeet upon

those against whom they’ were direet ed **" United

t

ee ae -* ' — ee

Bianchi vs. United States, 8 Cir, 1955, 219 P. 20-482,

188-190, cert. den., 349 U.S. 915, rehearing den., 349 U.S.

969; Nick vs. United States, 8 Cir., 1941, 122 F. 2d 660, 671,

cert. den., 314.U.S. 687, rehearing den., 314 U.S. 715, reh.

den., 316 U.S. 710. See United States vs. Compagna, 2 Cir.’

1944, 146 F. 2d 524,.528, cert. den., 324 U.S. 867, rehearing —

den., 325 rv S. 892. ,

a

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pal

P =

a Sel ASRS Ae TPL tI SITAR TEE

, 5 - 1 7 ae

48a

( Opinion of the United States aoe a Appeals r:

States‘vs. C ompagna, 2 Ci it. 1944, 146° er. Od 524, 52, cert.

den., 324 U.S. 867 (1945), reh. dens, 325 U.S. 892. (1945).

&

It is true that (despite the precautionary steps taken

by the -Judge as later discussed) the jury may have per-

mitted this evidence to hear upon the probability of Sica’s

-

7

“In this: ease Jedes Learned Hand. disagreeing with

the majority of the court, found the fact of fear irrelevant

in a conspiracy ease, althongh agreeing to its relevanée

in a ¢ase of substantive extortion. It does not appear from

that ease, however, that the plan of the conspirators was to

mstill fear in their victims. The ofititen: states at page

26:

ae

“So ‘far as appears they ‘did not expressly threaten |

violence but confimed:\themselves to a pretense of

union activity ; they threatened to call strikes against

their victims unless they were plentifully paid.”

Judge Hand was of the view that evidence of the vietim’s

fear of acts of violence incidental to the strike was irrele-

vant and inadmissibly in absence of any showi ing that this

fear was communicated to the conspirators.

* Accepting Judge Hand’s minority view might have merit |

under the cireuimstances of that case, the situation appears

entirely distinguishable from that at bar. ,

Here it.is charged that fear of Sica was intended to serve. -

as the very source of coercive power and the use of west

coast enforcers had heen expressly threatened. Further-

more, the victims’ fearful states of mind here were fully

disclosed to every one of ‘the conspirators. Gibson from

‘the outset Knew that Leonard and Nesseth were. apprehen-

sive that Carbo and Palermo would resorf*to force and was

requested by Leonard to intervene after Sica entered the

picture. Pa lermo. admitted knowledge t at Leonard and

his wife were frightened. Sica, himsel = ng Leonard

a onard wheth-

was taken aback by his‘presence, had ask

er “you'feel there’s some type df repercussions by my com- .

ing in here?” ¢

44a Cv ae iy eee

+ Opinion of the United States Court of Appeals)

guilt. The question is whether this possibility renders such

evidence unduly prejudicial agsl: inadmissible.‘ If so, the’

Pa: nited States is precluded from. establishing’ a_ material —

part of its case.

‘The question then gx not whether the U nited States may

"use Sica’s reputation as a sword against him, but whether

.

——

he.may himself make use of it.as a shield to immunize him-

self froriv¢proof of the, means by which the conspirators

planned th frighten their victims into submission. ‘Tf he:

may, then all who are known to live by. violence: are free

°. . to extort by the tacit threat of violence conveyed by their

reputations ; for the reasonableness of the resulting fear,

as determined by its cause, may not he presented to the

jury.

We c@pot acce it tis result as a. sound balance of, the

conflicting interests involved.

This, in our: indgment (with such ‘ealignerts as were

taken by the trial judge), is a proper case for. application

of what has been termed: the “multiple admissibility doc-

trine.” As stated.in 1 Wigmore, Evidence (3rd Ed., 1940)

613, page 300: ote : ae

“When an evidentiary fact is <* ffered for one pur-

pose, and becomes admissible by satisfying all the

rules applicable to it in that capacity, it fs not inad- °

missible because it does not satisfy the rules appli-

cable to it i some other capacity, and. because the jury

might improperly. consider it-in the latter capacity.

This doctrine, although involving certain risks, is in-

dispensable as a practical rule.”

In State vs. Belisle, 1920, 79 'N.H. 444, 111. “Ath. 316,

317, this doctrine was applied. There defendant Lyman

was 5 charged with assault upon a policeman. The victim,

{

4

. .

at aebiine, “vchets gtr

Pav

( Opinion of the United States Court of Appeals)

Fox, had sought to defend himself -by drawing a gun. To

justify this defense he was permitted to testify that

.Lyman was, Fox believed, a. man who would resort, to

force. The court stated: : nas

so .

: “The argument that the disposition, chsinnetek ¥, ak

reputation of L¥man are not evidence that he assault-

-ed Fox is sound. The difficulty with the defendant's

case is that, while the evidence was not admissible

forstthat purpose, it-was clearly admissible to prove the

“h reasonableness of the mode of defense from threat-

ened attack adopted by Fox. As the evidence was:ad-

inissible-for some purpose, a general exception to it

was unavailing. ”

‘To avoid confusion of issues ‘and to foreclose the jury

from using the reputation evidence to convict defendants

on the “bad man” theory, the court below, upon admitting

the testimony in question, instructed the jury as to the lim-

ited consideration which might be given.” The subject. was

@ *'* there ix an old hasic principle j in American law

‘réspecting the trial of criminal cases, and that is-that the

reputation of a defendant is just ‘not the thing in issue.

. You are trying a specific charge or a specific group of

charges that are set forth in the. indictment. :

“Now, a*person who is, ‘generally speaking, a fine up-"

standing citizen might occasionally go out and commit an

oceasional crime, and a, man who has.a bad reputation:

might never commit orie. He might not deserve the reputa-

tion, because reputation’ is something different from char-

acter. Character is the quality, of person you are and repu-

tation is what is beliéved in certain quarters regarding

certain aspects of your life. It might be justified. It might

not. ;

“S8 it would: be very easy, unless the jury disciplines

itself to consider the evidence for the purpose for which

45a)

£7 ANE Su LN EI 6 rn «f

BS a Ree

o

— s

46a

. (Opinion of the United States Court rf Appeals)

again dealt with in n the courts charge to the jury: We have

no doubt but that to the maximum extent “possible, preju-

dice flowing from guy confusion of issues by the jury was

eliminated. ace. a ’

There can’ be no question of ee A pre-trial

offer of. proof upon this matter was made by the prosecu-’

tion thirteen months: before the trial commenced. -

We conclude that the*district court did not err in hon. 7

ing Sica’s motion to dismiss the indictment or in admitting

the evidence of Sica’s Tepudiion. ;

ANONYMOUS THRE ATENING-TEL EPHONE CALLS *

In our statement of the faets we have recounted the re-

ceipt by Don Chargin of: an anony ‘mous telephone call just

prior to his leaving for Los’ Angeles in connection with |

negotiations with Leonard to ‘take over the Hollywood.

Boxing and Wrestling Club. The caller warned Chargin to’. *

stay out of Hollywood.

Appellants objected to this | testimony as irrelevant for

«Tack -of connection to any of the appellants and highly

prejudicial. After a considerable discussion of the objec-

tion ont of the: presence of the jury, the court concluded :

it is ‘admitted, to get off on the track of whether or not a

particular defendant has a reputation of a certaia kind or

other.

_ “Now, it is contended ‘here by the Government that this

witness Leonard was.put in fear of Mr. Sica and J think

they are entitled to show or have Mr- Leonard tell why he

was aftaid and to look at the situation to see if it was one

which was reasonadly calculated to produce that fear..

But the reputation of Mr. Sica per se is not before you, ’

except in this — way.’ .

. . “|

’

~

_ (Opinion of the United States Court of Appeals)

8] think the‘probiem will be one forthe jury. T have

an ancilary problem, to properly instruct them. You —

are invited tq submit instructions’ on it, but the ob--

jections are overruled. OP | . 4

The jury was then advised hy the court:

_ “The jury must of course bear in mind that the wit-

ness Says’ this is anonymous. Now, what’s anonymous

what is anonymous is anonymous in form and vou ¢an

‘fit it into the context of things. Whether this is the first

situation or the second.is going to depengd upon the

total context ofthe case, and just ‘dont go deciding

the issue on it until you have heard ‘all the evidence

and the instructions. ‘pe Ce

Adios of this testimony under the citcauietane es Is

assigned as error.

The fact that Chargin could not identify the speaker

does not ne¢essarily render’ this testimony inadmissible.

If identity could be found by the jury from other circum. ,

stances, admission of the testimony was proper. .

The issue of authenticity—the identity of the author of a”

particular item of evidence such asa document or phone

—-call—is for the jury once a prima facie case of authorship

_ is made out-by the proponent of the evidence.” The ¢on-

‘

Gg * *

me a,

*No instructions upon this subject were offered. o

“United States vs. Tellier, 2 Cir.; 1958, 255 F, 2d 441,

cert. den., 358 U.S. 821 (1958). See 7 Wigmore ‘on Evi- |

* denee, 62135, MeCormiek on Evidence, §194, Model Code of

Evidencé, Rule .601(a) (1942). That the procedure for

handling the i issue differs f rom oe which we found poorer.

‘

* 7 °° °. 47a

ordinarily in life doesn’t mean much, but sometimes .

aA

9

¥

ae

(Opinion of the United States Court of Appeals a

*. nection between a te ephone call and the eallér may be es-

tablished cireumstantially.“* The issue for the trial judge

in determining whether the ® required. foundation for. the

introduction of the evidence has been established is wheth-

er the proof is ‘such. that the jury, acting as reasonable

raen, could find its authorship as claimed by the proponent.

“The seope of appellate review upon. this issue is confined

to: ‘determining whether the admission constituted abuse

of judicial ‘diseretion: in determining that a prima facie

case had been made out.”

Upon the record we ainiiet say that the admissjon of

this: testimony constituted abuse of discretion.

with respect to declarations of co-conspirators’ is explained

-by the text wrifers. MeCormick, supra at: page 407, states:

“It must be noticed, however, that authenticity is

not to be classed’ as one of those preliminary questions

of fact.conditioning admissibility under technical evi-

dentiary rules of competency or privilege. As to these

- latter, the trial judge will permit, the adversary to itf- .

troduce controverting proof. on the preliminary issue

in support of his objectidn, and-the judge will decide

this’issue, without submission to the jury, as a basis.

for his ruling on admissibility. On the other hand, the

“authenticity of a writing or statement ‘is not a ques-

tion of the application of a technical rule of evidence.

It goes to genuineness and relevance, as the jury can

readily understand, and if a prima facie showing is

made, the writing or statefient comes in, with'no op;

portunity then for evidence in denial. If evidence dis-

‘puting genuineness is later given, the issue is for =.

jury.” :

af

“Andrews vs. U nited States, 10 Cir., 1935; 78 F. 2d 274.

See 7 Wi igmore on Evidence, §2155(1)(b).

“See Wigmore on Evidence, §2135 ) and cases cited there-

in; MeCormick on a §194.

Se,

Fives fi. ae ie fe a

1

( Opinion of thet United States Court of Appeals)

Daly, -a member of the, conspiracy, bed told er

that this warning: would most likely be given by the con-

spirators and nk

had surreptitiously contacted Leonard’s assistant and at-

tempted to have him aseertain when’ Chatgin ‘planned ‘to

~. be in town | and.where he could be reached by elegans:

These ‘facts, plus the, manner. in which the warning - so

obviously fitted into the conspiracy ‘scheme, are sufficient —

to warrant reasonable men in concluding that the telephone

call had been made by or at the direction of one of the

conspit; tors in furtheranee of the conspiraey, and thus.

irrespective of the precise identity of thie speaker , Was

binding ogp all appellants.

Appellants “also assert as irrelevant) and” prejudicial

lonard’s testimony. to the effect that he had received

threatening telephone calls between May 20 and November

1, 1959. *. : | ie :

The testimony was given on redivect examination. On

testimony *and depart the country if he were _ paid $29,

“000.00. : °

“oe y ; .

On redirect examination the Un.ed States sought to ex- }

a ".. 49a,

Oo

A month prior to the, warning Sica? ° ca

&

“aN

y

“nd

cross examination appellants had attempted ta impet weh

‘Leonard’s credibility by showing thatehe hat through hits

wife corruptly expressed a willingness to suppress his

plain this offer as founded not on corruption but on fear.;;

The testimony of the threatening telephone calls was rele-

vant to this issue and constituted proper inethod of

habilitating the witness."’. The resulting: prejudice — was

“See Bracey v. United States, D.C: Cir. 1944, 142 F. 2d

. 85, 89, cert. den., 322 U.S. 762; 4 Wi iginore on Evidence.

“1119; McCormick on Evidence, =

\

.

Ww >

50a

ites Opinion of the United States Court of Appeals)

carefully minimized by-the-presecution. The contents of

the calls were not divulged to the jury. Se os ake

- We conclude that it was not error to permit testimony

as to the anonymous threatening ielogene ealls.

MISCE LLAN EOUS ; MATTERS OF EVIDENCE

Sica asserts as error the admission of. testimony give n

by. Leonard with reference to one Tom Stanley. Leonard

testified that Stanley, a friend of Sica’s had called on him

on occasions at about the time the indictments were handed

down, seeking to persuade Leonard not to give testimony

in appellants’ trial. On two occasions Stanley had been ‘ac-

companied. by one Steve Calla. Stanley had stated: to

L eonard that Calla was a friend of Sica’s and. a convicted

murderer. In Leonard’s words, “He said? Mr. Calla had

‘been in the penitentiary. in Cleveland for murder and |

eaid ‘Murder?’ ere ‘Yes, he heat them to death. He

Was a strong-arm man.

Sica contends that. this testimeny by Leonard of con.

-“versations had with Stanley constituted hearsay.

There can be no question but that the testimony was in-

admissible for the purpose: of establishing that what Stan-\,

lev had said was true. {t was not admitted for this purpose,

however. Its purpose was to impeach and discredit Stanley

as a witness.

Stanley had been called as a witness by Sisa and had

- given testimony ‘which, if believed, would have reflected

upon the credibility of Leonard. The government sought

to show bias and complicity ‘upon Stanley’ s part; that

even though he was not named as a co- conspirator, he was

actively engaged in farthering the ends of the conspiracy.

“

©

Sin se 8 LEE S

wo

for inisdemeanor.

- a

ch

wi 5la

(Opinion of the United States-Court of Appeals)

Also, as in the ease of the anonvmous telephone threats

‘to Leonard, the testimony had the! purpose of’ showing

Leonard’s state of mind at a time when he was<charged

with’ having corruptly proposed to appellants that for a

consideration he would avoid the giving of testimony by

leavi ing the country,

In both these respects the testimony was relevant and

competent... The question was‘ not whether what Stanley

said was true but whether Stanley had said it. This was

_ made clear by the court in an admonition to the jury.

We find no error in the admission of this aa

Sica charges.the government with misconduct in asking

on eross examination whether he had been convicted ot

the crime of bookmaking.

On direct examination Sica had ‘testified with respect

- to his.felony reeord and had admitted to two convictions:

On cross examination he had adinitted a third. He was then

asked whether in 1951 he had been convicted of a conspiracy

to violate certain sections of the Penal Code*4f California

relative to bookmaking. Ir colloquy following objection

by Sica’s counsel, it appeared that although the exempli- :

fied copy of judgment in the government’s possession

denominated the crimg™ys a felony, a misdemeanor type_

_ of sentence had been iinposed rendering the conviction one

.

Cc

‘Counsel for Sica then, moved to strike the question and

asked the court to instruct the jury to disregard. it..$ This thé

count did to the express satisfaction of Sica’s’ counsel,

who conceded that the government apparently had acted

“See 3 Wigmore on. Evidence, §§948-949, 956, 960.

:

e .

+

ot

ni Sat

e

(Opinion of the United States Court of Pane

d2a -

in good faith. The hieiiteis dav Sica’s counsel, reversing

his.judgment as to the good faith:of the government, moved

for mistrial. The motion was denied. °

In our judgment, the court acted properly. We note that

the question under attack never was answered. We have

diffieulty finding any prejudice. Sica had admjtted three

telony convictions including robbery. A jury suspicion that

he may also have been convicted of a misdemeanor would }

not seem to add measurably -in the credibility balane e.,

Furthermore, the admonition of the judge was clear and

commanding and in our judgment was an adequate remedy.

We eonclude that it w vas not error or abuse of discretion

to deny Sica’s motion for inistrial. ° .

. Nesseth and one other witness, MeCoy, were permitted

over objection to testify to conversations had with Leon-

ard, during which Leonard had reeounted to- them ‘the

.

threatening statements ‘made to him by Carbo. Carho as- -

serts that this testimony Was inadmissible as hearsay.

Leonard had already testified to the fact that’ these

threats had been made. The testiniony of Nesseth.and Me-

Coy was relevant proof of the state of mind of Leonard and

-of the effect which the threats had-had upon him. It was:

competent evidence for this petpere and its admission was

not er ror.

Appellants assert error in the admission of testimony by °

Leonard as to extortionate demands by Carbo not related

.to those here in issue. In our judgment, these were relevant

in. bearing upon, intent and in showing Carbo’s general plan

or scheme to dominate the-boxing. field.”

“See Bush vs. United States, 9 Cir., 1959, 267 F. 2d “483,

489; 2 Wigmore on Evidence, §§300, 302, 304.

2 eens sae! EARS RFS

a . 53a

(Opinion of the United States Court of Appeals) -

Carbo in his briefs has listed fifteen items of evidence

which he contends were irrelevant and prejudicial. As to

the bulk of these we do not regard them as irrelevant. Te

the extent that they were we find no “prejudice. In any

event; they did not form the basis of ariyassignment of

error. te

Apyellants sania that’ evidence ‘of ee lay. Leonard

conversation should not have been admitted .s yee that con-

versation did not serve to further the conspirac Vy. We think |

it obvious that it did.

a CHARGE TO THE JURY

Rule 30, F.R.Cr.P., provides that any party may file

requests for instructions and that “the court shall inform

counsel of its proposed ‘action. upon the requests prior to

their arguments to the jury, ‘bat the court shall instruct

‘the jury after the arguments are completed.”

Appellants filed extensive requests for instructions.

The distriet court advised appellants that he rejected all

requests in the forms submitted because. of their prolixity

and confusing draftinanship. He did not take issue witli

the propositions of law so presented, but refused to inform |

counsel ax to the precise form bis charge would take. al

pellants assert that this is a violation of Rule 30-and 1

versible error. wR

Assuming arguendo that this constituted a violation of

the rule as'strictly read, we find no prejudice, The charge

was proper, as We shall discuss. Appellants’ arguments to

the jury consumed four days and no suggestion has been,

given us as to how they might have been made more ef

fective had the court fully and precisely dise ‘losed. the suly

“S4a -* ,

——{Opinion_of the United States Court of Appeals)

stance of its charge. Therefore, we find no reversible

error."

Ln one respect appellants were placed at a disadvantage

hy virtue of the court’s method of procedure: It was ren-

dered difficult for them to comply with: the requirement

of Rule 30 that error in the giving of instructions may not

be asserted unless objection is made before the jury. retires

to consider its verdict. The government here asserts that

appellants are foreclosed by this provision of the rule

from asserting error in the charge. In our judgment, this

“provision should not apply‘ under such circumstances, as

we find here. We therefore proceed to a consideration of -

those,errors assigned by appellants relative to the charge.

Appellant Gibson “presented evidence of good character

ad assigns as error the district court’s failure to instruct’

the jury that such evidence alone may create a reasonable

doubt of guilt. ..

U pon this proposition of law the cirenits are divided,

The Tenth (jeined by the Seventh) holds in accordance

with Gibson's contention." The remaining circuits do not

require any more than that the jury be freely permitted

to consider character vevidence along with all other -evi--

dence “upon the issue of “guilt. ® Such is the rule in this

circuit. =

“Watada vs. United States, 9 Cir, 1962, 301 b 2d 869.

re. |: i hee

‘Peterson Vs. United States, 10 Cir., 1959, .268 IF. 2d 87.

See footnote 3 of the Peterson case, supra (our foot-

note 4+) at page 89. *

“Kaspar vs. United States, 9 Cir., 1955, 225 F. 2d 275,

oT 9.979. E

‘ S.07 € . ‘

*%

| OO ae

«

:

ae | Gein he a

~) (Opinion of the United States Court of Appeals)

It is in the interpretation of Edgington vs. United States,

1896, 164.U.S. 361, that the cireuits appear to differ, There

the Supreme Court stated, at page: AiG :

“Whatever may have been said in some of the éar-.

lier cases, to the effect that evidence of the good char-

acter of the defendant is not to be considered unless

the. other evidence leaves the mind in doubt, the de-

cided weight of authority now is that good character,

when considered in connection with the other evidence

in the case, may generate a reasonable, doubt. The.

circumstances may be such that an. established repu-

fation for good characteY, if it is relevant-to the issue;——

would alone create a reasonable doubt,-although with-

‘out it the other evidence would be convincing.”

“#

‘In support of -Gibson’s position, a dietum in Michelson

vs. United States, 1948, 335 U.S. 469, 475, referring to the

privilege of introducing character evidence states:

“This privilege is sometimes valuable to a- defend.

ant for this Court has held that such testimony alone.

in some cireumstanees, may be enough to raise a rea-.

sonable doubt of guilt and that in the federal courts

a jury ina proper case should be so instructed, Mdging-

tonvs. United States, 164 U.S. 361."

P Edgington, howeyer, did not say-or suggest that charac- .

ter evidence is so highly probative that it must, upon

penalty of reversal, be singled out from the builk of the tes-

timony for special treatment. In Edgington the court was

faced with an instruction which confined the jury’s con-

_ sideration of character evidence to cases W here the evi-—

dence was in conflict or where the rest of the evidence

“created a doubt of guilt. It heid such limitation improper.

It did not hold that the lack of limitation must be express-

ly pointed out to the jury.

Sta - ,

a (Opinion of the United States Court of Appeals)

Se. :

Here the districtSpurt charged:

“The jury is entitled to consider whether a person

having such a reputation would commit such an of-

fense. It is all up to you and you are to integrate all

of this evidence. You are to integrate all of these in-

structions. Take nothing as an isolated matter. Con-

sider the picture as a whole.”

“The court, Went further; however, even approaching Gib?” ~~

son's proposed, instruction. It gave as an example a Govy-

ernor of the State of New-York accused of robbery ‘and,

with repeated reference to-this example, pointed out that.

“it would’ be yery, very unlikely that a person of that

reputation would be out as a stickup man.” It thus strongly -

“suggested to the jury that it might find it improbable. that

a man of good reputation would commit a_ particular

erie. : |

Under the view of the law adopted by this court, the in-’

structions upon this point were adequate.

Appellants claimed that the trial court failed to make a

finding that the defendants’ activities complained of af-

fected interstate commerce so as to sistain federal juris-

diction. “The judge instructed the’ jury that “if boxing

- matches are in fact televised. and television is sent into’

other states, that brings it within ambit of interstate com-

meree.” This was sufficient.”

Roses aprile

3

¢

“Compare piveres vs. United States, 9 Cir., 1960, 282

BY, 2d 435, 43 |

“Hulahan vs. United States, 6 Cir, 1954, 214 F: 2d 441,

445-6, cert. den., vend US s. 856 (1954):

(Opanion of the United States Court of Appeals)

‘peels assert error in the instruction relative is the

necessity for proof of overt: acts in order to establish con-

spiracy under §371. The court charged | ;

“It is tiecessary further that, in addition to the show-

ing of the unlawful conspiracy or agreement, the Gov-

ernment prove to vour satisfaction, hey ond a reason-

able doubt, that one of more of the overt acts des¢r ihed

in the indictment was.done by one or more of the de?

_— fendant®’ oF at-theirediraction 0 or with their ‘aid.”

Appellants contend that it was error ‘to tell the jury that

‘an act done at the direction of the. defendant's or w ith their

aid would satisfy the requirement.

We disagree. IS U.S.C. §$2(b) ree ognizes the principle

of eriminal agency in the federal law. It provides:

“Whoever willfully causes an act to be done which if

» direetly performed by him or another would be an -

offense against the United States, is punishable as it

principal.”

Furthermore, an instruction in accordance with appel-

lants’ views: was given elsewhere in the charge. While

appellants contend that this constitutes at best a conflict

between instructions, we find no prejudice r resulting... Since

both Carbo and Palermo were found guilty on their sub-

stantive counts, the jury clearly found that overts acts

had been committed by. these defendants on hoth conspir-

acy counts.’

Appellants assert that an instruction ‘on aiding and abets ~

ting was confusing. We do not find it so, They assert that

the court failed to instruct clearly on reasonable doubt.

We regard the charge as perfectly clear. They’ eriticint ed

the court’s explanation of the division of functions between

court and jury as tending to lu!l the jury into a sense that

——

(Opinion of the United States Court of Appeals)

‘their responsibility was. not final. We disagree. We find

no merit in appellants’ complaint that the court failed to

define the term “underwortd. ” : <2 .

MISCELLANEOUS “ASSIGNMENTS OF MISCON-

DUCT, VIOLATION OF DUE PROCESS

AND OTHER MATTERS

_ Appellants assert that they were denied due process be-

cause the prosecution permitted faise ev idence to go un-

corrected. ,

Leonard was caught up in a falsehood with reference

‘to his alleged solicitation of hush money from appellants:

He testified that it was his wife and not he himself who

had acted in this’ respect. A tape recording of a conver-

sation between Leonard and. Palermo, introduced by ap-

-pellants, demonstrated the contrary. Appellants’. position

ix that the government thus solicited false testimony and

. failed adequately to apprise the jury of the truth, rely-.

ing on Napue ys. [llinois, 1959, 360 U.S. 264.

‘In that case denial of due process lay in the fact that the

truth, known to the prosecution to be contrary to its wit-

nesses’ testimony, was never brought home to the jury. ;

flere the truth, known to the defendants, was brought home

to the jury in the most effective possible way. Further-

more, government counsel in argument to the jury -conced-

éd that Leonard was not testifvi ing truthfully in this) re-

gard. ;

Defendants appear to be contending that when a gov:

ernment witness has been discredited in one respect, the

United States is obligated to disown him. We disagree.

When ‘the falsity of testimony js brought home to the

jury, it remains the jury’s function to determine to: what

; 59a

(Opinion of the United States Court of Appeals)

extent that witness’ testimony is otherwise worthy of

helief.

Gibson contends that he was promised that his indict-

| ment would be dizmissed. We find no substantial or ered-

ible evidence tending to show. such a promise. In other

respects, appellants protest that there was misconduct and

deprivation of fair trial; alleged distortion of evidence by

the government in closing arguments; permitting Nessethi

and MeCoy to. sit before the bar ‘of the court during clos-

ing arguments so that government counsel might point

them out; the court’s interrupting Carbe’s counsel with

questions during his argument: In none of these matters

do we find merit. ©

Appellants contend that they have been denied due proc-

exs and equal protection of the. laws - ‘through denial of

bail during trial. These contentions have already been

made to this court in two prior appeals and there disposed

of."

Gibson, bemg of the colored race, asserts that unconsti-

tutional discrimination oceurred in the selection of the.

jury venire through systematic exclusion of Negroes. -

There was no proof of exclusion; only of the fact that out

of fifty veniremen none was a Negro. Testimony of the

clerk ofthe court as to the manner of selection effectively

. refuted this contention, and Gibson's offered proof of ra-

cial population statistics would not have been persuasive

to the contrary. “Purposeful discrimination is not sus-

tained by showing that on a single grand “jury the number

“Carbo vs. United States, 9.Cir., 1961, 288 F. 2d 282;

Carbo vs. United States, 9 Cir., 1961, 288 F. 2d 686, cert.

den., 1961, 365 U.S. 861.

- . ——— a Re ee ee a ie EIU IO TEN Ae RS ae

TST. Dek pee PLR ESS SR PARNER | Pace OER tp ARR et AO Si

60a. | : ; ‘ ee

(Opinion of the United States Court of Appeals)

of members of one race is less than that race’s sing

of the eligible individuals.” Akins v. Texas, 1945, 325 US

398, 403.°°

t Apmellaists aesied that ‘the district court’s: method of

| handling challenges to the jury violated Rule 24(b) in that.

_ it did not assure the defendant their minimum number of

challenges. The: district judge required each side simul-

taneously to submit their cchalleriges in writing to the

clerk. The same juror might thus have been challenged

‘ by both sides. This is not improper. we

- Gjbson asserts that he was allowed ohly one challenge

as to the three alternate jurors while Rule 24(¢) grants

him two challenges. This matter, however, Ee pre-

sented to,.the district court and must be considered as

waived.

Gibson contends that he was improperly hisiet sever-

“ance: We disagree. The substantive counts in which Gib-

son was not charged still constituted overt acts attributable

to him on the two conspiracy counts: in which he was,

char Red.

RULINGS OF THE. SUCCESSOR JUDGE ~~

‘-Following trial and jury verdict and while motions for

new trial by all appellants-and a, motion for acquittal by

Appe!lant Dragna were pending before iim, Judge Ernest

‘A. Tolin, the-trial judge, died. Judge George H. Boldt was

? assigned to suceéed him. A-supplemental motion for new *.

—— ,

‘

“See also Cassell -vs. Texas, 1950, 339 U.S. 282, 286-7.

"Pointer vs. United States, 1894, 151 U.S. 396, 412; Han-

- son vs. United States, 9 Cir., 1959, 271 F. 2d | 791, 792-3.

PSO ace agian ee a RET IE RN ETON I I

a

e

-

* ,

eat cae : : 6la

(Opinion of the United States Court of Appeals)

‘trial was made by all appellants under Rule 25, F.R.Cr.P.."*

upon the ground that®judicial duties in the case could not

be properly performed -by a successor judge. All. motions

were denied and Judge Boldt proceeded to impose sen-

tence. This is assigned as abuse of discretion. eee

Appellants rely heavily upon dicta in Connelly v. United

, States, 8 Cir., 1957, 249 F. 2d 576, 580, cert. den., 356 U.S.

921 (1958), reh. den., 354 U.S. 964 (1958), where, in up--

holding a successor judge’s decision that he could properly

q proceed, the court stated: a .

“There might well be a criminal case in which the

' testimony would be of such a character that a successor

. a judge could not fairly pass upon the questions here .

| presented. If the evidence of the government were de-

nied and the question of the eridibility of the govern-

ment witnesses was a serious issue the conflict in the

evidence and the question of the credibility of wit-

‘nesses “might be a. matter of very seribus considera-

tion. However, in the instant case the evidence of the

government was not. of that character.” |

t Appellants assert that this case is precisely’ of such

character; that it depends alniost.in its entirety upon the

testimony of Leonard and Nesseth, which was flatly cori-.

oO

““Tf by reason of absence from the district, sickness or

other disability the judge before whom the defendant has

been tried is unable to perform the duties to be performed

by the court. after. a verdict or finding of guilt, any other

judge regularly sitting in or assigned to the® court may

perform those duties; but if such other judge is satisfied

that he cannot perform those. duties because he did not

preside at the trial or for any other reason, he may in’ his

discretion grant a new trial.” Pe 7

las

t radicted by the:a

62a se ‘ . ; ” P , “

(Opinion of the United States Court of Appeals) ©

, = . |

ppellants’ witnesses in many material re.

spects;. that credibility of witnesses.‘ was of the’ essence.

_ of the case. he ee

“Accepting the statement in Connelly, ‘we do not appre-

hend that where credibility of government Witnesses is a

“seriou& issue it: must follow ipso facto that a‘new trial _

must be had. In Bennett vs, United States, 5-Cir., 1960,

’ 285 F. 2d 567, cert. den., 366 U.S. 911 ( 1961), the court held

that the successor Judge acted properly in passing upon

defendant’s new ‘trial motion and: in ‘sentencing him even

though the facts were in dispute and the resohition of fac-

tual dispute’ by the jury was dependent upon demeanor. —

Credibility involves more than-demeanor. It apprehends

the over-all evaluation of testimony in the light of its

rationality or-internal consistency and the manner in which

it hangd’ together with other evidence. We should be <in-

clined to emphasize deineanor rather than crecibility as

thé vitalYactor upon the question here ‘pre ented. The in-

quiry, then would seem to’ be as ‘to how importantly de-

meahor appears, to loom in making the necessary credibil-

ity determinations. ee a

Here Judge Boldt, before ‘ruling on the supplemental

motions for new trial, Spent more than three mcnths ina

careful study of the record. 7,900 pages of transcript. were

-condensed by him into, an abstract of 1,320 pages. He con-

cluded, in his memorandum order: | BS

“On the whole record this court is fully. satisfied

every defendant was. accorded a fair trial, free trom

prejudicial error, and that the evidence ‘thoroughly

supports the verdict in every essential paiticular as to

each defendant. The contentions of defendants which

- entailed a most exhaustive consideration of the record

ee

4 : 63a

(Opinion of the Dnited Statés Court ~ 94 ppeals) :

ge

%, "

and analysis of ‘éathaniteg are those relating to the

credibility: of government witnesses, the admission in

_Jury. The case against the defendants did not:rest on

the unsupported oral testimony of either Leonard or

Nesseth or both. Their testimony, in all essential par. -

ticulars,.was fully and convincingly corroborated.”

This’ conclusion with respect to the. substance of the.

corroborating evidence was reiterated from the bench, at

"the time of imposing sentence. At that time Judge Boldt

also expressed his conviction, based upon actions and

words of Judge Tolin, that Judge Tolin “had not the’

slightest doubt of the guilt of any of the _ ear semua or af

the credibility _of. the principal witnesses.

In the exercise of his diseretion Tudge Boldt has, in -

- evidence of the r recorgings and their playing to the ”

f

our view, concerned himself with’ the vital question. He a

~ has concluded, after.most careful and conscientious study”

that the corroboration Leonard’and Ni-sseth received

other convineing evidence placed the government's Case —

safely’ bevond .demeanor impeachment and that Judge

Tolin himself had not been disturbed by questions. of

credibility. His determination i in'this Jatter respect is rein-

forced, to some extent at: least, hy. Judge Tolin’s charge to

the jury. He warned them to discognt the effect fear and_

the courtroom atmosphere might have on witnesses and:

emphasized the virtue of appraising testimony by the miin-

ner in which it successfully integrated with other evidence.

We do not find abuse of diseretion in the action of J udge

to the completion. of the judicial proceedings in the. Siatriet

-eourt.

Boldt in proceeding, as successor judgé under Rule 25, |

70.

LS

( Opinion of the United States Court of Appeals)

| DECISION

As to. Appellant Carbo, judgment affirmed.

As to Appellant Palermo, judgment affirmed.

© As to Appellant Gibson, judgment affirmed.

As to ApWellant Sica, ‘judgment upon Counts 1 and 4 _

affirmed. Judgment on Count 5 reversed and the ease re-

inanded with instructions that judgment on this count ‘be

set aside: ;

‘%

As to Appellant pian judgment reversed wa the -

case remanded with instructions that judgment be entered

for this defendant.

(Endorsed) Opinion Filed Feb. oe 1963.

< ~ Frank’ H.-Schmid, Clerk.

Se ate PRAMS A ESS

SE PSS sr SNe eee Se

.

: ; | 65a

vf dudament of the. United States Court of Appeals)

APPENDIX B

In- The .

UNITED STATES COURT OF APPEALS

For The Ninth Circuit

PAUL JOHN CARBO, et al, -

Appellants,

‘i vs.

v | \ No: 17,762

UNITED STATES OF AMERICA,

Appellee.

Appeal from the United States District Court for

. the Southern District of California

Central Division

JUDGMENT

This Cause came on to be, heard on the Transcript of

the Record from the United States District Court for the

Southern District of California, Central Division. and was

duly submitted.

ae Cimsestion Whereof, It is-now here ordered and

adjudged by this Court, that the judgment in this Cause

he, and hereby is affirmed as to appellants Carbo, Pafer-

pee and Gibson ; that judgment as to appellant Sica is af-

‘firmed upon Counts 1 and 4 and oa Count 5 judgntent is °

‘reversed and the cage’ remanded, with instructions that

judgment on this count be set aside.

t

Filed and entered February 13, 1968.

(Constitutional Provisions and Statutes Involved).

APPENDIX C_.

CONSTITUTIONAL PROVISIONS AND — ;

' STATUTES INVOLVED.

‘Fourth Amendment, United States Constitution :

“The right of the people to be secure in their persons,

houses, papers, and effects,- against ‘ unreasonable

searches and, seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup- -

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.” die

The Fifth Amendment to the United States Constitu-

- tion provides in pertinent part:

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

or otherwise. infamous crime, unless on a present:

ment or indictment of a*Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

‘when in actual. service in time of War or public dan-

ger; * * * nor shall be ‘compelled in any criminal!

case to be a witness against himself, nor be deprived

of * * * liberty or property, without due process

of law; neta fous |

The Sixth Amendment to the United States_ Constitu.

tion provides in pertinent part:

“In all criminal prosecutions, the accused shali en-

. joy the right * * * to be informed ‘of the nature and

eause of the accusation; * * *”

Sept scanner Ne BN ate x v

A ike Ese ip. po 6, oo ras At es

< .

67a

(Constitutional Provisions and Statutes Involved).

18 USC 371 (62 Stat. 701) provides in pertinent part:

“If two or more persons conspire either to commit

any offense against the United States, or to. defraud |

the United States, or any agenéy thereof in ay man-

ner or for any purpose, and, one or more of such

persons do any act to effect the object of the con-

spiracy, “each shall be fined not more than $10,009 or

imprisoned not more than five years, or both.”

18 USC 875(b) (62 Stat. 741) provides:

_*(b) Whoever, with intent to extort from any per-

son, firm, association, or corporation, ‘any money or

other thing of value, transmits: in interstate commerce

any communication. containing any -threat to kid-

* nap any person or any threat to injure the person of

- another, shall -be fined not more than $@§0 or im-

prisoned not more than twenty years, or hoth.”

18 USC 1951 (62 Stat. 793) provides in «jase, dealin

*(a) Whoever in any way or de obstructs,

uelays, or affects commerce or the afiovemert of any

article or commodity in commerce, py robbery or ex-

tortion or attempts or conspires so + do, or commits

or theatens physical violence to gafv person or prop-

erty in furtherance of a plan or purpose to. do any-

thing in vidlation of this section shall be fined not

more than $10,000 or imprisoned not more than twenty -

vears, or both.

~

“(b) As used in this section—

“(2) The term ‘extortion’ means the obtain-

ing of property from another, with his consent,

- 68a

~ (Constitutional Provisions and Statutes Involved)

induced by wrongful use of: actual or threatened

force, violence, or fear, or under color. of of-

ficial right.

“(3) The seen ‘commerce’ means commérce

within the District of Colimbia, or any Territory

or Possession of the United States; all commerce

‘between any .point in a State, Territory, Pos-

session, or the District of Columbia and any point

outside thereof ; all commerce between points with-

in the same State through any place outside such

State; and all other commerce over which the

-United States has jurisdiction.”

Rule 25, Federal Rules: of Civil Procedure, prov ides:

“If by reason of * * * death * * * the” ‘vudge be:

fore whom the defendant has. been tried is unable’ to

perform the duties to be performed by the court

after a verdict or finding of guilt,"any other judge

regularly sitting in or assigned to the court may per-

form those duties; but if such other judge is satis-

fied. that he cannot perform those duties because he.

did ‘not preside at the trial or for any other reason

he may in his discretion grant a new trial.”

-

oe

| ° : 69a

(Detendant Gibson's Special Instruction F)

APPENDIX D-

DEFENDANT GIBSON’S SPECIAL INSTRUCTION F

There is uncontradicted evidence that the’ defendant

Gibson has a good ‘reputation for honesty and integrity

in the community where he resides. The éireumstances

may ‘be such that an established reputation for good charac-

ter alone may create a reasonable doubt as to the guilt

of the defendant Gibson. You should take that evidence

of good reputation mito consideration atong with all the

other evidence as to him in determining the guilt or

innocence of Mr. Gibson.

COURT'S REMARKS, (R. Tr. 7697-7699)

In this case we have the conflict of problems that arises

cae that in the cese of Defendant Gibson. As | recall

, the defendant Gibson was the only one who put his

lied in evidence. He called ‘Witnesses and they were .

asked questions, “Is his reputation good. or bad?” Arid

_they said it was good. |

That is offered as to someone under.the same principle

lomentioned regarding the Governor ct New York. Mr.

Gibson, of course, doesn’t claim to be a governor of any

political subdivision. He claims to be an active managing

head of substantial commercial interests. He claims to be

a member of the ‘bar, and he claims to. have a good reputa-

tion. This is not to say that people of good reputation .

are entitled to go and‘ commit crimes. No one is entitled

to commit crimes. But there might be instances, as in

Ne Ee NS er een Hy Oth iat eRe

\ >} : : n

70a | |

* (Court's. Remarks) ,

that possibly now getting about to the limit of its useful-

ness in instructions,. that case we mentioned.as to the

‘Governor of New York being charged with robbery.

. The jury is entitled to consider whether a person hav-

ing such a reputation ‘would commit such an offense. It

is all up to you and you are to integrate all of this evi-

dence, You are to integrate ail of these instructions. Take

nothing as an isolated. matter. Consider the picture as a

whole. ;

_ But so far as the reputation of any defendant is con-

cerned, the only evidence here on what the reputation ac-

tually was of any defendant is that Gibson has offered

evidence: that his reputation was good. Insofar as I ean. .

_ recall, strictly in the field of reputation evidence, that is, .

someone getting on the stand and saying, “I know what

his reputation is,” there was no evidence to the contrary.

But bear in mind that reputation evidence does have

a very limited purpose in the trial.

See pan