# Appendix — O'Connor v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1662%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1963 - **Citation:** 375 U.S. 844 ## Text . St ee APPENDIX A ———— 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) : ee da (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. \ BNR RENAE GOL 6a tag! CE " nN ~ a teen : w ce R Ta DARREN ve Gates Pb as aes ‘ NEV RE EFS. Poa Wasa | PENS Sa roe. : PENG . . . *. Seo ‘ TR SS PD SSR RARTA Neste” ory . ° ‘ ’ ‘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. - - . ae : Ta (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. ‘ 8a cr (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 a" va e e 9a t (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 “ 10a : 7p. , (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 : ” « . Ida (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 l2a (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 a 13a (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 | l4a .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- ; : ee Lda (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- wes 3 ; ~ (Opinion of the United States Court of Appeals) 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= o . . s . -_ oe va! = eee | : Mas aoe _ * : 3 ® ng e ; a Wel o* } e - f : ee d Ney, rs & sa » 4 e : ® . ; “7y ow. . —— g a 5 z > x ° “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 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." , ' ‘ os - 5 mes . : 7 CP OR wae i . A SET NPOOS Be eS pita cr alte 5 a, eS ae Arig s ° o ra "(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 * : . . 4 . ad ; . . ‘ so 5 ¢ apie Ani Re 48, e ~ ° a or} 28 te . ¢ ae e - a . » 5 if (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.” ° ' 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. 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) “ 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 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 wt . € 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 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} : : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1662%3A05. Public record. Not legal advice.