Petition for Writ of Certiorari — D'Ercole v. United States

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SIPREME COURT. Us &

IN 7a

OCTOBER TERM, 1969 _

620°

_ HENRY FRIED. and §. T. GRAND, INC.,

Petitioners,

* —against—

THE UNITED STATES OF AMERICA,

Respondent.

: PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS sii —

SECOND neue

; ;

ARTHUR KarceEr,

Counsel for Petitioner,

600 Madison Avenue, 3

New York, N. Y. 10022.

‘AurreD Donati, JR.,

Of Counsel.

ion

<Q 32 Case Press Inc‘, 421 Huson St., N.Y.—ORegon 5-4540

INDEX

PD TI oe nls cnn. 0ee000s 000060600508 benunes

SUPIOGIOIOR «oon ccc cgccnes pisaekanuckandeealeas

SD BOIS 6. nc bcccsccriccccconeseenntsss

Constitutional and Statutory Provisions Infolved ..

Statement of the Case ................. Pe Pre

Rulings of District Couri and Decision of Court of

BI 09:8 60059606608000 40s ae ond ane ai eae |

Reasons FoR GRANTING THE Writ

1. As to whether the hearsay declarations of al-

leged co-conspirators could properly serve to

supply the requisite evidence against petitioners

of the essential, jurisdictional element of knowl-

edge or reasonable contemplation on their part

of the use of interstate telephone communica-

tions, as held by the Court of Appeals below

2. As to the Fifth and Sixth Amendment rights of

a target of a Federal grand jury investigation

who is subpoenaed before the grand jury .....

3. As to the effect of Itkin’s role as an undercover

* Government informer as precluding his being

considered a co-conspirator for the purposes of

the co-conspirator exception to the hearsay rule

4. As to the ‘permissible scope of the cross-exam-

ination of a defendant’s character witness ....

CoNncLUSION ** Vite, 4 reer eevee ,* - seer eee eeeeeee °

BS &

Appenpix A—Opinion of United States Court of Ap-

=r SNe gens 4

PAGE

Aprenpix B—Opinion of United States District

MD TT RGc ict Ouwawnese aU Ghee CEC ee wanuens 1+. 64a

Aprenpix C—Judgment of United States Court of

Re aaa pore 68a

Order Denying Petition for meng ivenahee a 70a

AppenpIx D—Constitutional ond Statutory Pro-

visions Involved ceepwevesseces Ceseceececeeeees Tle

AUTHOR:‘TIES CITED o

Cases

Bruton v. United States, 391 U.S. mah saweilesde 29

Carbo v. United States, 314 F.2d 718 (9th Vir.), cert.

den. sub nom. Palermo v. United States, 377 U.S.

DD. ckococadewsedernebrsddverBevrrcostocepecess 20

Escobedo v. Illinois, 378 US. GP vpeccrsecsevs cetes 22, 25

Ferina v. United States, 302 F.2d 95 (8th Cir.), cert.

den. sub nom. Cardarella v. United States, 371 U.S.

PtP SUE pasbeen seers enhgnenebeseegecsse 17

Glasser, v. United States, 315 US. 60: che naneenntcs ewe

Harlow v. United States, 301 F. 2d 361 (5th Cir.), cert.

den, 371 U.S. 814 ........-seeeeeeeeeeecees prsns 17

In Re Groban, 352 U.S. 330 ........----0edeeeeees 25

Ingram v. United States, 360 U.S. 672 ........ 15, 16, 21, 22

. Jones v. United States, 342 F.2d 863 (D.C. Cir.) .... 24

Krulewitch v. United States, 336 U.S. 440 ...... here 25

Massiah v. United States, 377 U.S. 201 ............ 22

Michelson v. United States, 335 U.S. 469 ....:...... 28, 29

Miranda v. Arizona, 384 U.S. 436 ............ 22, 23, 24, 25

Sears v. United States, 343 F.2d 139 (5th Cir.) ...... . 27

Stirone v. United States, 361 U.S. 212 ............. 15

. oa

iil

_ PAGE

Tripp v. United States, 295 F.2d 418 (10th Gir.) .... 17 -

Twitchell v. United States, 313 F.2d 425 (9th Cir.),

vacateéd:and remanded in other respects, sub nom,

Rogers v. United States, 376 U.S. 188 ...... 15, 16, 17, 21

United States v. Barnes, 383 F. 2d 287 (6th Cir. ty

cert. den., 389 U.S. 1040 ......... Vaweuiieueil Pp... 15,91

United States v. Beno, 324 F.2d 582 (2d Cir.), cert.

ee Se Oe sets veer ecdasedutedesssues 29

United. States v. Bentvengl 319 F.2d 916 (2nd Cir. ), ae

cert. den. .375 U.S. 9

United States v. Chase, 372 F.2d 453 (4th Cir.) ..... | 27

United States v. Costello, 352 F.2d° 848 (2d Cir.),

rev’d on other grounds sub nom. Marchetti v.

United States, 390 U.S. 39 ..... OPEC TE OCT -. 19, 27

United States v. nee, 123 F.2d 271 (24 Cir.)

15, 16, 19, 21

United States v. Desale, 183 F.2d 201 (2d Cir.), aff’d

ee Se Gn ova wiauend cca viaenss b00eeeeebansé 20 -

United States v. Giddins, 273 F.2d 843. (2d Cir.),

ET, Se I I winpN iv bce encnsccchcucsscns 29

United States v. Halpin, 374 F.2d 493 (7th Cir.),

GONG. GU, TD WU. BD oc cnc ctedecscocesscceves 20

United States v. Hawthorne, 356 F.2d 740 (4th Cir. ) 15

United States v. Morello, 250 F.2d 631 (2d Cir.) . 27

United States v. Ragland, 375 F.2d 471 (2d Cir. ),

COREE, GE. Sie Ws We habe ni vosadedecceccecce 19

Wong Sun v. United States, 371 U.S. 471 .......... 25

United States Constitution

Piste AtmenGtient .........scvcscccccees 2, 22, 23, 24, 7la

ee MUI cn ccbcihssccceceaseant 2, 22, 23, 24, 71a

Sor 4

Statutes

: PAGE

fe. Sy eo : sedi clue 3, 72a-

BB UMD. § TBS. oc cccecsses's apse sedeues 1, 3, 4, 14, 15, 71a

Miscellaneous

- Meshhesher, ‘‘Right to Counsel Before Grand J ury,””

eS ree ph auiehea ea 23, 24, 25

_ ‘The Supreme Court, 1963 Term,’’ 78 Harv. L. Rev.

errs ARENA WARS RA RE LSS ENN ERERES se eeeees . 24

Supreme Court of the United States

October Teim,. 1969

No.

Henry Friep and S. T. Granp, Inc., .

Petitioners,

—against— |

Tue Unitep States or AMERICA,

Respondent.

“a »

¢ +

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners, Henry Fried and S. T. Grand, Ince. (herein-

after referred to as ‘‘Grand’’), pray that a writ of cer-|

tiorari issue to review the judgments of the United States:

Court of Appeals for the Second Circuit entered on July 8, .

1969, which affirmed judgments of the United States Dis-.

trict Court for the Southern District of New York, entered

on a jury verdict, convicting petitioners and two co-defen-

dants, Antonio’ Corallo and Daniel J. Motto, under an.

indictment charging them with conspiracy to violate 18

U.S.C. § 1952 by using the interstate telephone with intent

to promote the commission of the New York State, crime

_of bribery. —

: ae inion Below tea

The opinion of the Court of Agfoale'ie is not en danetel:

but is printed in Appendix A, infra, pp. 1a-63a). The opin-

ion rendered by the District Court on one of the issues here

presented is reported in 281 F. Supp. 24, 30-31, and is

. printed in Appendix B, infra, pp. 64a-67a.

Jurisdiction

The jadgment of the Court of Appeals was: entered on.

July 8, 1969 (Appendix C, infra, p. “68a). A timely peti-

“

™

‘ tion for rehearing filed ‘by petitioners, was denied by that

Court on August 21, 1969 (Appendix C, infra, p. 70a). :

The jurisdiction of this Court’ is invoked under 28 U.S.C.

§ 1254(1). |

Questions Presented

1. Where a defendant has been indicted on the charge

of conspiring with others to violate 18 U.S.C. §1952 by

using the telephone interstate with intent to promote the

commission of the New York State crime of bribery: |

(a) Is the question whether there is legally sufficient

evidence against such defendant as to-each essential

element of the crime charged, to warrant submission

of the case against him to the jury, to be determined

solely on the basis of the independent proof of his

own words and acts, without regard to the hearsay

declarations of alleged co-conspirators?

~b) Is such defendant entitled to a judgment of ac-

quittal as a matter of law, for failure’ of proof of an

essential, jurisdictional element of the crime charged,

where there is an absence of any independent evidence ~

of his .wn words and acts to show that he knew or

had reason to expect that the interstate telephone was

or would be used or caused to: be used in furtherance

of the alleged conspiracy, and that he agreed to the.

use of the same?

2. Is it violative‘of the Fifth and Sixth Amendment

_ rights of an individual who is a target_of a pending Fed-

eral grand jury investigation, for the Government to com-

pel such individual, _pursuant to subpoena, to submit to

secret interrogation before the grand jury, without the

presence of counsel at such interrogation?

3. Where it is undisputed that a named defendant in a

Federal conspiracy prosecution, as to whom the. indict-

ment was severed on motion of the Government, had

throughout the period involved in such case and for a |

number of years prior thereto, been making regular re-

. ports to the F.B.I. in other matters as an undercover Qov-

ernment informer, pursuant to a general assignment from

| 3

the F.B.I. to infiltrate organized crime, that he assumed

-the guise of a co-conspirator in this case pursuant to such

‘ assignment and his purpose throughout was to gather evi-

dence for Government prosecution of the other defendants,

that he withheld the details of such case from the F.B.I.

until after consummation of the conspiracy in order to pre-

Serve his ‘‘cover’’, and that the Government had agreed to

recommend that the indictment against him be nolle prossed,

was it error for the Court.of Appeals to hold that there was

no evidentiary basis for the objection that such a Govern-

ment informer could not be considered a co-conspirator for -

the purposes of the co-conspirator exception to the hearsay

rule?

4, Is prejudicial error committed in the trial of a Fed-

eral crimin@l case, where the trial court permits the Gov-

ernment attorney, over objection, to cross-examine a de-

fendant’s character witness as to whether’such witness has

heard of the defendant’s commission. of other alleged crim-

inal activities, where such alleged activities are of a secret,

unpublicized nature and notJikely to have been the —

of comment in the community? ;

Constitutional ‘and Statutory Provisions. Involved

The constitutional provisions here involved are the Fifth

and Sixth Amendments to-the United States Constitution.

The statutes here involved are 18 U.S.C. § 1952 and 18

U.S.C. § 371. The pertinent :portions thereof ¢ are set forth

in a D, infra, pp. 71a, 72a.

Statement of the Case

The one count indictment in this case charged seven de-

fendants, including petitioners, og others with the crime

of conspiracy to violate 18 U.S.C. § 1952 by traveling in

‘\interstate commerce and using and causing to be used ‘‘a

facility in interstate commerce, to wit, the telephone, i.

tween New York, New York, and Greenwich, Connecticut,

with intent to promote . . . and facilitate the promotion’’

of the ‘‘unlawful activity’’ of bribery of. a public official

in violation of the Penal Law of the State of New York

(22a-23a).? However, notwithstanding the reference in the

indictment to interstate’ travel, the case was submitted by

the District Court to the jury, and the conivictions were af- ©

firmed by the Court of Appeals, solely on the theory of a

conspiracy to use the interstate telephone in violation of”

18 U.S.C. § 1952 (1221a-1222a; App: A, infra, p..2a).

The public official involved was defendant James L.

Marcus, formerly in charge of New York City’s Department

of Water Supply, Gas and Electricity, and the alleged bribe,

consisting of a.5% kickback amounting to. $40,000, was

charged to have been agreed upon by the defendants and

paid by petitioners Fried and Grand as the condition for

the award by Marcus to Grand (of which Fried was presi-

dent) on November 23, 1966 of an emergency contract for

the cleaning and repair of the Jerome Park Reservoir in

Bronx County, New York. The indictment alleged that it

was part of the conspiracy that the defendants other than

petitioners Fried-and Grand ‘‘would and did make and

receive and cause to.be made and received telephone calls

between New York, New York, and Greenwich, Connecti-

cut’’ concerning the alleged bribe agreement and the pay-

ment and distribution of monies pursuant thereto (24a-25a).

Defendant Marcus pleaded guilty.. The case was also

severed, on motion of the Government, as against another

defendant, Harbert Itkin, an attorney associated with

Narcus in in business ventures, who, as hereinafter

more fully shown (infra, pp. 26-27), had been engaged

in infiltrating organized crime as-a secret informer for the

F.B.I. since 1962 and, according to his testimony, engaged

in the alleged conspiracy with the intent to gather and

turn. over to the F.B.I. evidence for Government prosecu-

tion of the other defendants.

In. early’ 1966, the New York City Water Department’s

engineers determined that it was necessary to clean and

' Unless otherwise indicated, figures in parentheses followed by

the letter “a” refer to the pages of Appellants’ Appendix in the Court

of Appeals, a certified copy of which has been filed with this petition.

- repair the. Jerome Park/Reservoir becaus® of a heavy accu-

mulation of sludge, and theys recommended that the job be ’

awarded to a qualified contractor as an emer; gency con-.

tract, without public bidding, on a cost plus basis, because

the’ scope of the work was not fully determinable, and

because of the time factor involved in having the work done,

-as quickly as possible (145a-148a).

‘ The Government’s own evidence showed that following

meetings -which tiey initiated with a representative of

Grand, Sidney Rosenwasser, the City’s engineers inde-

pendently. reeommended to Marcus,in October 1966 that

Granc. would be the best contractor to do the work, based

on its past performance and reputation, and its having the

necessary equipment and manpower to meet the time sched-

ule for completing the work (149a-150a, 170a-172a, 182a-

184a, 369a). But Marcus said that he would think abont it

and instructed the Chief Engineer, Groopman, to interview

other contractors (150a).

Interviews followed of two other contractors. The first’:

was the so-called Orlando-Daril group, a joint venture |

which included one Orlando, who had engaged in. prior

bribe deals with Marcus through Itkin (150a, 173a, 333a-

334a, 365a, 650a). The City engineers found that group

- unqualified (15la). The next contractor was- Oakhill Con-

struction Co., with which Marcus had made a substantial

bribe arrangement through a Republican party official

named Ruggiero (232a-233a). Oakhill was found qualified

(152a), and on November 18, 1966, Marcus instructed

Groopman to prepare the necessary papers for the award _

of the reservoir contract to Oakhill, which Groopman did

(152a-194a). On November 23, 1966, however, ‘Marcus told

Groopman ‘‘that he had changed his mind, that he was

going to award the contract to S. T. Grand, and * * * that

he would feel easier because S. T. Grand is a very large

‘company with a great deal of equipment’’ (154a), and new

papers were thereupon prepared for the award of. the

contract to Grand (154a-157a).

- The Government’s case against petitioners Fried and

Grand was for the most part, based on testimony by Itkin

= . : [

' “and—Mareus as to declarations allegedly made, out of

Fried’s presence, by defendants Motto and Corallo and

by another alleged-eo-conspirator, one Joseph Pizzo, who

handled labor relations for-several of Fried’s companies

‘as well as other contractors in the-eonstruction field. As

the District Court stated in its charge to the jury (1238a),

‘fup to July 1967, there is no direct evidence that any of

the parties talked directly to Henry Fried or his brother

on the subject of a kickback. The testimony all relates to

what was reported to and by the alleged co-conspirators’’.*

' Itkin testified that Motto approached him late in May

1966 on a proposition for a kickback arrangement in con-

nection with the award of the Jerome Park Reservoir con-

tract,.and that he spoke.to Marcus about Motto’s proposal

(484a-485a). According to ‘Itkin and Marcus, however, this

was -too large a contract for Motto to handle, and Motto

‘introduced Itkin to Corallo as someone “‘higher up’’, and

Corallo told Itkin that they were going to have Pizzo at- . °

tempt to, negotiate a ‘kickback arrangement with Fried

(485a-487a). Marcus and Itkin decided to ask for a 744%

kickback for themselves, which they estimated would

amount to $75,000 (488a). According to Itkin, he thereafter

had meetings with Motto and Corallo in September 1966,

‘at which he was informed that they had decided to ask for

a 15% kickback, which w ould include 714% for themselves,

and he:was told by them that 15% was ‘‘too much for :

~ Henry Fried to pay”’’ and that they ‘‘can’t get this amount” °

(491a). They suggested that Marcus consider reducing his

figure (491a), and Marcus then agreed to. a reduction to

‘5% (213a-216a, 492a-494a)..

Itkin testified that on September 28, Corallo told him

that ‘‘the deal is dead’’ and that ‘‘ Joe Pizzo had met with

' Henry Fried and his brother and they just said no to the

10 percent, they weren’t going to pay that much’? (495a,

642a). Itkin then suggested to Corallo that they let Motto

handle the deal, since Motto had previously told Itkin that

meth Ennai ihocghent this petition is supplied, ianless otherwise

inglicated.

ments from

. as to Motto’s picking up payments from D’Angelo (517a, °

' 4 . : +.

he could do better than Pidfo through his friend, Carl

D’Angelo, an attorney who did legal work for several of

Fried’s companies (495a, 489a, 963a, 992a, 1103a). Accord- .

_ ing to Itkin, he and Corailo met with Motto a few days |

later and Motto said he felt he could make the deal but at

no more than 5% (496a). Marcus thereafter agreed to

reduce his percentage to 3% (496a). Itkin further testified

_ that he met Motto some time in the middle of October and

that Motto told him ‘‘It’s a deal, we got it for 5 per cent’’,

and they would get the money ‘‘all at once’’ (498a).

Marcus téstified that he ‘made the switch on November 23,

1966 from Oakhill to Grand, because Itkin contacted “him

and told him that Corallo sad Motto:would kill them if he

gave the contract to Oakhill ¢ 233a). After the award of the

contract to Grand, some time went by without any payment,

and Motto then purportedly told Itkin and Marcus -that*

Fried would not make any payment until he could estimate

the amount of the contract price and that he would then

make a partial payment of one-fourth of the estimated 5%

kickback (507a-508a). Itkin testified as to the difficulties

thereafter me sar encountered by Motto in securing pay-.-

ried (509a, 515a-517a). Itkin also testified

669a), and as to a dispute between Motto and the others

‘in the spring of 1967 as to whether Fried had paid a total

of $40,000 or only $30,000 (262a-263a, 521a-522a). Accord-

ing to Marcus and Itkin, it was finally agreed between the

- alleged co-conspirators other than Fried and Grand. that

a total of $1,600 still remained due from Fried, and that

$1,000 thereof would go to Pizzo and $600 to Marcus (523a).

The $1,600 was never paid (528a). |

The only occasion for interstate telephone calls arose —

because Motto, who was a labor union official with an office

in Long Island City, New York, lived in Greenwich, “Con-

necticut (200a). Marcus and Itkin testified that they made

telephéne calls to Motto, both at his office and at his home

(217a, 237a, 251a, 262a, 504a, 506a, 509a, 514a; 515a, 516a, >

545a), and the Government introduced records of the tele-

phone company showing a total of seven calls between

~ Motto’s home in Greenwich, Connecticut and Marcus’ home

or Itkin’s home or office in New York City on various dates

between October 1966 and August 1967 (826a).

Though the telephone company had turned over to the

Government records of telephone calls made from Fried’s

and Grand’s’ telephones (831la), the Government adduced

no evidence.to show that ed had ever made any tele-

phone calls to or vecotvelliter calls from Motto. There

was likewise nd evidence to show that Fried had any knowl-

edge or awareness any telephone communications be-

tween Motto.and anyWf the other alleged co-conspirators.

There was indeed nogjiowing that Fried had fr Mass og

that Motto lived ou%Side New-York. -

Tlie only independent evidence adduced by the Govern-

ment of Fried’s own words and acts for the purpose of

showing Fried’s and Grand’s connection with the alleged —

conspiracy to use the interstate telephone in violation of

18 U.S.C. § 1952, was as follows:

(a) Marcus testified that he first met Fried in October

1966, when he was introduced to him by a Republican politi-

cal leader, one Vincent Albano, and that Albano stated

that’ he would be very appreciative if Marcus ‘‘could give

the job of Jerome Park ReServoir to Mr. Fried’’, and

added that Fried ‘‘had always been a heavy contributor

to the Republican party’’ (218a-219a). Marcus testified

that Albano had previously talked to him about Fried on

numerous occasions over a period of months (219a-220a),

but never offered’ Marcus a single dollar as a bribe (370a).

(b) Itkin testified to various statements allegedly made

by Fried at two meetings at the. Commodore Hotel, the .

first in July 1967 and the second in early August 1967. Itkin

met Fried for the first time at the July meeting, when

Marcus introduced him to Fried as Marcus’ ‘‘friend and

advisor’? and then excused himself to let Itkin talk to

Fried alone (265a-266a, 524a).

According to Itkin, Fried at the July meeting suggested

that Itkin handle future deals with the City through Fried,

* The evidence against Grand consisted only of the evidence against

Fried, its president (see 1212a).

saying that ‘‘there is no reason to share with these other.

guys’’ and that he could ‘‘handle the biggest payoffs in the

City’’ and could ‘‘handle a quarter of-a million dollars in

green at any one time if the deal is big enough’’ (525a).

Itkin, according to his.testimony, then said to Fried that

Fried had ‘‘only paid 30,000 of a , contract, and

‘.- that doesn’t sound very big’’, whereupon Fried said ‘‘ What

do you mean, I paid 30? I paid 40’’ (525a). Itkin further

testified that Fried then confirmed that he owed $1,600

more, and upon Itkin’s saying that he couldn’t deal ‘with

_ Fried until Fried finished the deal with the other ‘‘people’’,

Fried said that he would ‘‘pay Danny Motto the money

back within a week’’ (525a-526a).

Itkin admitted on cross-examination, however,.that at

the same July meeting at which Fried was allegedly sug-

gesting future bribe transactions involving City contracts,

Fried turned Itkin down when Itkin asked him to invest

‘in land in the Dominican Republic (611a). Both Itkin and

Marcus admitted on cross-examination that Itkin had re-

ceived a number of payoffs from contractors who did busi-

ness with the City, other than Fried, through the medium |

of purported property investments or construction con-

,tracts in the Dominican Republic (330a-331la, 424a-426a,

428a, 612a-613a; 68la). Yet, as noted, Itkin admitted that

Fried-turned down his proposition for such an investment.

Itkin testified that his second meeting with Fried at the

Commodore in August was arranged by Orlando (526a-

527a). According to Itkin, Fried at this second meeting

asked Itkin to obtain a certain contract for Orlando for

the cleaning and repair of the’Central Park Reservoir, in

which Fried would participate ‘‘as a sort of undisclosed

partner’’ and would provide Orlando with the necessary

equipment, and Fried said that he would ‘‘take care of

the green, since Edward Orlando couldn’t’’ (547a-548a,

~ 608a, 609a-610a). Itkin also testified that Fried at this

meeting handed Itkin $1,500 in cash on behalf of Orlando,

constituting a bribe payment for a small emergency con-

tract which the Water Department had given Orlando

(527a, 610a).-Itkin further testified that he had Orlando

at this meeting ask Fried whether Fried had paid the ©

$1,600, and that Fried first brushed the matter aside and

then said that he would take care of the $1,600 payment

prior to the opening of Fried’s horse farm on August 20,

1967, and invited Itkin to the opening (527a).

Itkin admitted, however, on cross-examination that he

might have asked Fried again at this second meeting to

invest in Dominican land and that Fried again turned him

down (680a). Significantly, though Orlando purportedly

did not have $1,500 available to pay his bribe debt to Itkin,

Orlando stated at this meeting, according to Itkin, that he

would put up $5,000 for an inve}tment in Dominican land

if Fried would put up $5,000 (680a). Itkin also admitted

that the Central Park Reservoir job was never given out

to anyone, but that Orlando, prior to this meeting, had.

given him an advance bribe payment for the job, which he

never returned (610a, 684a, 431a-432a).

farm on August 20, 1967 and that Fried, in a brief conver-

sation there, said ‘‘I finished up with Danny”’ (527a-528a),

or ‘‘‘I havewpaid Danny’ or something to that effect’’

(688a).

(d) Marcus testified that in a conversation outside the

grand jury room on the morning of December 18, 1967,

Fried said to him ‘‘They are on a fishing expedition, they’

haven’t got anything on us’’ (276a-277a). He further

testified that late in the afternoon of the same day, while -

the defendants were being fingerprinted in the basement

of the Federal Building, Fried came up to him and, in a

loud tone of voice in the presence of U.S. Marshals, said

‘They haven’t got anything on us. If we all keep quiet,

we will be all right’’ (277a, 407a). Itkin testified that

Fried also made'a similar statement to him in a conversa-

tion in the grand jury anteroom on the morning of the

same day (533a-534a). “

(e) The Government, : over objection and motion to sup-

press, was permitted to introduce in evidence Fried’s tes-

timony before the Grand Jury, in which Fried denied hav-

“i

ing made any agreement to pay a 5% kickback and further

denied having made any payment to D’Angelo or ariyone

‘‘for being awarded this contract’’ (872a). He further

denied having discussed the Jerome Park Reservoir con-

tract with D’Angelo or Pizzo (870a, 880a). He gave sub-

stantially the same versions that he testified to at the trial

(see infra, p. 12), of his two meetings with Itkin at the Com-

modore Hotel, at the first.of which Marcus also appeared

(870a-873a), as well as of his having met Motto on but a

single occasion, in May or June of 1967, when D’Angelo

drove Motto up to Fried’s farm sometime prior ” its open-

ing (878a, 869a, 875a).

Taking the stand in his own defense, Fried testified that

he never talked with anyone prior to the award of the .

Jerome Park Reservoir contract to Grand on November 23,

1966 concerning any kind of fee or kickback in connection

with that contract (991a-992a). He first learned about the.

reservoir job from Grand’s representative, Rosenwasser, .

who, as above noted, had several meetings with the City

engineers and who believed on the basis of those meetings

that Grand would get the contract aa 958a, 912a-

918a, 922a).

According to Fried, D’Angelo, an nittileies who did legal

work for some of Fried’s companies (992a), came into his

office in the late afternoon of Friday, November 25, 1966,

‘shortly after Fried had received the written contract for

the job and said he wanted Fried to know that he had

. helped Fried ‘‘get this job’’ and demanded a 5% finder’s

fee (961a-963a). Fried refused to pay any such fee, but

Pizzo contacted him the following week and insisted that

he pay the fee, threatening a no down”’ in Fried’s busi-

ness operations if the fee were not paid (968a). Fearing

Pizzo’s power-in-the construction field, Fried agreed to

pay the 5% finder’s fee to D’Angelo in installment pay-

ments (966a-972a, 997a). Fried then arranged with his

Comptroller to make payments to D’Angelo on account of

the 5% finder’s fee as periodic bills were sent to the City

for the work done (972a-973a). A total of spout $40,000

was thus paid to D’Angelo (974a).

Fried’s versions of his meeting with Marcus and Albano,

and of his meetings at the Commodore with Itkin, differed

sharply from those testified to by Marcus and Itkin. He

thus testified that he never discussed the reservoir job with

Albano and that it was never mentioned at. the meeting at

which Albano introduced him to Marcus (956a-958a, 960a).

As regards the Commodore meetings, Fried testified that

he went to both meetings at the request of Orlando, with

whom he had business dealings (1090a), and that all that

transpired in both meetings was that Itkin tried to interest

him in investing about $25,000 in some land in the Domini- -

can Republic and that Fried turned him down, and that

at the second meeting Itkin, out of a clear blue sky, said to

Fried ‘‘ What did you pay on that Jerome Reservoir?’’ and

that Fried was taken by surprise and said “$40, 000”? (9608-

985a).

Fried denied having invited Itkin to the opening of his

farm or having seen or spoken with him there (997a-998a).

He also denied that he ever called. Marcus on the telephone

(982a), or that he ever spoke with or called Corallo (979a-

982a). Fried met Motto on but one occasion about May or

June 1967, when D’Angelo arranged to have Motto, to

whom he referred as a client of his who was a labor union

official interested.in horses, see Fried’s horse farm prior

to its opening, and they falked only about horses, and Fried

- never saw Motto again until the day of the indictment and

_ never called him or otherwise _— with him (978a-979a,

973a, 982a).

Fried further testified that when he appeared in the

grand jury anteroom on the morning of December 18, 1967,

prior to testifying before the grand jury, he was approached

by Pizzo who said ‘‘Make sure you testify no money was

passed or you are apt to find your body in an empty lot’’,

and that D’Angelo also approached him and said he was .

going to testify that ‘‘no money was passed’’ (1003a).

Fried testified that he lied before the grand jury as to

the $40,000 payment and his discussions with D’Angelo and

Pizzo, because of fear for his life (1003a-1004a). He flatly

denied (1001a-1002a) having spoken to Marcus or Itkin

OD) on December 18 or having made the statements to which

they testified (supra, p. 10).

Rulings of District Court and Decision of

‘Court of Appeals

The District Court initially admitted the various itis

co-conspirators’ declarations in evidence, over objection,

only on a tentative basis, conditioned on a showing by

independent evidence as respects each defendant of his

connection with the mer conspjracy (196a-198a, 1224a-

1225a).

At the close of the siitaiania! s case, counsel for peti-

tioners Fried and Grand moved for judgment of acquittal

“on the basis of the insufficiency of the evidence, urging,

among other grounds, that there was ‘‘no evidence that the

defendants Fried or Grand ever used or caused to be used

any facility in interstate commerce or that they had any

knowledge thereof or contemplated any such ‘use’” (897a-

898a). The District Court denied that motion (909a) as

well as the renewed motion for judgment of acquittal on

the same grounds made by said avanti at the close of

the entire case (1149a).

As noted above, the only issue submitted by the District

Court to the jury regarding the use of a facility in interstate

_ @dommerce was with reference to evidence of interstate tele-

phone communications between New York City and Green-

wich, Connecticut (1221a-1222a). With respect to that

issue, the Court left it to the jury to determine, as to each

of the defendants, whether ‘‘there was an informed par-

ticipation by him [the defendant] in an agreement or un:

derstanding, which intended to use interstate phone com-

munications or which reasonably contemplated the use of |

such communications, if required, to further the illegal

activity’’ (1231a).

The Court further charged the jury that they were not to

consider any declarations of alleged co-conspirators against

any particular defendant unless they first determined, on

the basis of the independent evidence of such defendant’s

”

words or deeds alone, that he was a eats and “e par-

_ ticipant in the charged conspiracy (1224a-1225a)

As more fully shown below, in rejecting petitioners’

contention that they were entitled to judgments of acquittal

because of the insufficiency of the independent evidence

against them to establish the essential element of their

knowledge or reasonable contemplation of the use of the

interstate telephone, the Court of Appeals held thatthe

declarations of alleged co-conspirators could properly serve

to supply any deficiencies in that regard in the independent

evidence, and that ‘‘the totality of the proofs’’, including

such declarations, warranted the jury in making the requi-

site finding (App. A, infra, pp. 44a-50a).

Additional facts, including the rulings below on the other

questions presented, are set forth infra under the discus-

sion of the ere questions.

REASONS FOR GRANTING THE WRIT

1. As to whether the hearsay declarations of al-

leged co-conspirators could properly serve to supply

the requisite evidence against petitioners of the essen-

tial, jurisdictional element of knowledge or reasonable

contemplation on their part of the use of interstate

telephone communications, as held by the Court of

Appeals below.

The questions here presented are worthy of review by

this Court, because (a) they concern the important matter

of the proper criteria for. determining the legal sufficiency

of the evidence in the trial of a Federal conspiracy prosecu-

tion; (b) the decision of the Court below engenders con-

_ fusion and uncertainty with respect to such criteria and is

in conflict. with’ decisions of this Court and of Courts of

Appeals in other circuits; and (c) the matter is of particu-

lar importance as respects conspiracy prosecutions, such as

this, under 18 U.S.C. § 1952, affecting as it does the extent

to which Federal prosecutors will be able to invoke that

statute, as they are doing today with increasing frequency,

Bese | 15

for Federal prosecution of acts. which would otherwise be

purely State offenses.

As the statute, , 18 U.S.C. § 1952, makes clear, one of the

essential elements of the crime defined by it\is the use of a

facility in interstate commerce with intent to promote an

‘“unlawful activity’’. United States v. Barnes, 383 F.2d 287,

290-291 (6th Cir,), cert. den. 389 U.S. 1040; United Meies ;

v. Hawthorne, 356 F.2d 740, 742 (4th Cir.). Without that

element, there would be rae Federal jurisdiction, and all

that would remain would be a local offense, here the State

crime of bribery, punishable by the State alone. See Stirone

v. United States, 361 U.S. 212, 218.

The authorities establish that where, as here, an essential

element of the particular substantive offense is the use of a

facility in interstate commerce in furtherance of a particu-

lar unlawful objective, without which there would be no

Federal jurisdiction, a defendant charged with being a

party to a conspiracy to commit such offense cannot be con-

victed on that charge in the absence of evidence sufficient

to show that he knew or at least had reason’to expect that

such a facility in interstate commerce was or would be used

or caused to be used in furtherance ¥ the unlawful objec- ©

tive, and that he agreed to the use of the same. United

States v. Crimmins, 123 F.2d 271, 273-4 (2d Cir.) ; United

States) v. Barnes, supra, 383 F.2d at 291-3; Twitchell v.

United States, 313 F.2d 425, 429 (9th Cir.), vacated and

remanded in other respects, sub nom. Rogers © v. United

States, 376 U.S. 188.

To convict such a defendant of the Federal conspiracy

charged, it is not sufficient merely to prove that he was a

_ party to a conspiracy to commit the local State crime.

United States v. Barnes, supra, 383 F.2d at 291, 292;

Twitchell v. United States, supra, 313 F.2d at 428, 429. It is

essential to prove that he was a knowing and wilful party

to aconspiracy ‘‘with a purpose illegal under federal law’’

—i.e., to use a facility in interstate commerce in furtherance

_ of the illegal local activities. See Ingram v. United States,

360 U.S. 672, 677. The requisite intent on the part of the

particular defendant to commit the Federal crime canbe

16.

established only by proof of such defendant’s knowledge of ©

the use of the interstate facility, since ‘‘ Without the knowl-

edge, the intent cannot exist’’. See Ingram v. Umted States,

supra, 360 U.S. at 678.

Nor is it sufficient to prove merely that the alleged co-

conspirators had knowledge of the use of the interstate

facility, or to speculate that-if the particular defendant had

known of such use, ‘‘it would have made no difference in

his conduct.’? See United States v. Crimmins, supra, 123

F.2d at 273-4, holding, in an opinion by Judge Learned

Hand, that a defendant who had purchased in New York

securities stolen in other states, could not be convicted on

a charge of being a party to'a proven conspiracy to trans-

port such stolen securities‘in interstate commerce, without

proof of knowledge on his part—as distinguished from the

knowledge of the alleged co-corispirators—, not only that

the securities had been stolen, but that they had been trans- *

ported across state lines. Judge Hand expressed the under-

lying rationale as follows (123 R.2d at 273) :

‘¢ * * * Courts do: indeed say that each conspirator

is chargeable with the acts of his fellows done in

furtherance of the joint venture; but into that must

be read the condition that acts so imputed must be in

' execution of the venture ds all understand it; not in-

* deed in its details, but so far as concerns those terms

which constitute the substantive crime. It is never.

permissibJ¢é to enlarge the scope of the conspiracy

itself by proving that some of the conspirators, un-

known to the rest, have done what was beyond the

reasonable intendment of the common understanding. |

* * & 99 :

Similarly, in Twitchell v. United States, supra, involving

a proven conspiracy to transport girls across state lines

for purposes of prostitution in violation of the Mann Act,

the conviction of a local sheriff who was shown to have col-

lected payoffs to permit the operation of the particular

prostitution ring in his county, and whose ‘‘bag man’’ was

shown to have knowledge of the interstate transportation,

was reversed because of the absence of sufficient evidence—

as distinguished from suspicion—to show that he had.

A ey

‘‘actual knowledge of the * * * illegal interstate transporta-

_ tion’’ or that he had ‘‘directly agreed to a scheme which

could not be consummated without illegal transportation, -

or * * * in which it was known that the likelihood of illegal

interstate transportation was great”’ (318 F.2d at 429; em-

‘phasis the Court’s).

It is further the settled rule that a defendant’s participa-

tion in a charged conspiracy can be established only by in: -

dependent proof of his own words and acts, without regard

to the hearsay declarations of alleged co-conspirators, and

that hearsay will not‘be permitted to ‘‘lift itself by its own

bootstraps to the level of competent evidence.’’ See Glasser |

v. United States, 315 U.S. 60, 74-5; United States v. Bent-

- vena, 319 F.2d 916, 949 (2d Cir.), cert. den. 375 U.S. 940;

Harlow v. United States, 301 F.2d 361, 368 (5th Cir.), cert.

den. 371 U.S. 814; Ferina v. United States, 302 F.2d 95,

104-5 (8th Cir.), cert. den. sub. nom. Cardarella v. United

States, 371 U.S. 819; Tripp v. United States, 295 F.2d 418,

422 (10th Cir.). v

While the independent evidence of petitioner Fried’s own

words and acts in this case might be sufficient to support a |

_' finding that he was a party to a separate conspiracy to -

commit the New York crime of bribery of a New York

public official, it was clearly insufficient as a matter of law

- to support a finding that he was a party to the charged

Federal-conspiracy to use interstate telephone communica-

tions with intent to promote the local crime of bribery.

The evidence showed that the only occasion for inter-

state telephone calls in this case came about because Motto,

whose office was in New York City, lived in Greenwich, Con-

necticut and had some telephone conversations from his

- home with some of the alleged co-conspirators other than

Fried. The record is, however, completely barren of any .

independent evidence to show that Fried ever had any tele-

phone conversations with Motto, or knew of any telephone

conversations between Motto and any of the other alleged

co-conspirators, or indeed had any knowledge that Motto

lived in Greenwich, Connecticut. There could accordingly .

_be no evidentiary basis for any inference that Fried had

’ it 7

any reason to expect or contemplate that ‘there would be.

any interstate telephone calls in furtherance of the alleged .

bribery activity. So far as he was concerned, all the ac-

tivities involved were of a purely intrastate nature.

The Court of Appeals in the instant case ‘acknowledged

that ‘‘Proof of the participation of a particular defendant

in the conspiracy must be by his own words and acts”? (App.

A, infra, p. 45a). It held;\however, that ‘“‘in a joint con-

: spiracy trial the proof sufficient to establish the participa-

tion, of a defendant in the conspiracy”’ is not “‘the same as’

the proof sufficient to carry the case to the jury as against

that.same defendant’’ (Jd., infra, pp. 44a-45a). The Court

then went on to hold that since there was independent evi-.

- dence to show that Fried “was a participant”’, presumably °

in the local bribery conspiracy,‘ a sufficient, basis was there-

_by afforded for the admission into evidence against Fried -

of the hearsay declarations of the other participants in the.

local bribery conspiracy, with the consequence that such

hearsay declarations could then be considered by the jury ©

in determining whether ‘‘the totality of the proofs, includ-’

ing . ... declarations of cq-conspirators . . .”’, established

Fried’s participation in the charged Federal conspiracy

' (Id., infra, pp. 44a-45a, 47a, 50a).

The effect of the decision below is to sanction the use of

hearsay declarations ‘of alleged co-conspirators to fill vital

gaps in the independent evidence against a particular de-

fendant, and thereby,to vitiate the settled limitations on the

“use of such hearsay aBdiarations in conspiracy prosecu-

tions. Since, as has been aptly stated, ‘‘by hypothesis the.

-* The independent evidence referred to by the Court in this con-

, nection (App. A, infra, p. 45a) was sufficient only. to warrarit a

finding that Fried “was a participant” in the New York bribery

conspiracy. Manifestly, if the Court had intended to hold that there

was sufficient independent evidence to establish Fried’s participation

in the charged Federal conspiracy to use the interstate telephone, it

would have been unnecessary for it to engage in its lengthy discus-

sion of the hearsay declarations, or to hold as it did, that such hear-

say declarations could be’ considered by the jury in determining

whether the essential element of Fried’s knowledge or reasonable.

contemplation of the use of the interstate telephone had been estab-

lished (see App. A, infra, pp. 45a-50a). i

‘conspiracy and.defendant’s participation must be independ- |

ently established before the hearsay may be used against

him’’ (see United States v. Costello, 352 F.2d 848, 853, fn.

2 [2d Cir.], per Friendly, J., 'rev’d on other grounds sub

nom. Marchetti v: United States, 390 U.S. 39), it surely eon;

travenes Glasser v. United States, supra, 315 U.S. at 746,

to permit the hearsay thus to ‘‘lift itself by its own boot.

. Straps to the level of competent evidence’’.

_ Moreover, it is axiomatic that ‘‘It is never permissible.

to enlarge the scope of the conspiracy itself. by proving that

some of the conspirators, unknown to the rest, have done

what was beyond the reasonable intendment of the com-

mon understanding.’’? United States v. Crimmins, supra, —

128 F.2d at 273, per Learned Hand, J. Yet that is-precisely

the effect of the decision below, under which the hearsay

declarations of alleged co-conspirators‘have been made the

predicate for enlarging the scope of the local bribery con-

spiracy, so far as petitioners are concerned, so as to treat

them as parties to a brgader Federal conspiracy to use-a

' facility in interstate commerce ‘“beyond the reasonable in-

tendment of the common understanding’’: . ee Oe ee

As authority for its position, the Court below cited prior

decisions of that Court holding that hearsay declarations

of an alleged co-conspirator may be admitted in evidence

against a defendant on proof properly deemed sufficient by

the trad to meet the ‘‘threshold requirement’? of ‘‘a

showing of a likelihood of an illicit association between the

declarant and the defendant”’, and that the jury may then

consider such declarations in passing on the credibility and

weight of the evidence. Sep, e.g., United States v. Ragland,

375 F.2d 471, 477 (2d Cir.),:cert. den. 390 U. S. 925 ; 5 ADP: A,

infra, pp. 44a-45a.

Manifestly, however, the vague requirement of ‘‘a show-

ing of a likelihood of an illicit association’? represents a

departure from the rule laid down in Glasser v. United

States, supra, 315 U.S. at 74, that the hearsay declarations

_ of an alleged co-conspirator are not admissible against 4

particular defendant in the absence of. “‘proof alitinde that

he is connected with the conspiracy’’, or, as otherwise

phrased, in the absence of ‘‘evidence of the conspiracy and

the individual defendant’s participation in it independent

of the declarations.’ See, e.g., United States v. Halpin,

374 F.2d 493, 495 (7th Cir.), cert. den. 386 U.S. 1032.

The Court below further stated (App. A, infra, p. 44a)

that the doctrine applied by it had its roots in Judge

Learned Hand’s opinion in United States v. Dennis, 183

F.2d 201, 230-1 (2d Cir.), aff’d. 341 U.S. 494. It is sub-

mitted, however, that Judge Hand’s opinion in Dennis in

no way sought to modify the settled rules for determining

the legal sufficiency of evidence to warrant the conviction

of a defendant charged with being a party to a conspiracy.

Judge Hand dealt, not with the question of legal sufficiency

of evidence, but only with the fact-finding function of the

jury in relation to properly admitted hearsay declarations

of alleged co-conspirators. All he decided in that regard

was that the jury could take such declarations into account

in weighing the evidence against a particular defendant,

without being required first to find that the legally suf-

ficient independent evidence itself established such defend-

ant’s participation in the charged conspiracy beyond a

reasonable doubt (183 F.2d at 230-1).

Contrary to the decision below, the Dennis doctrine has

thus been interpreted by the Court of Appeals for the Ninth

Circuit as meaning only that so long as the independent evi-

dence would be sufficient, if credible, to make out ‘‘a prima

facie case’’ of the particular defendant’s connection with

the charged conspiracy, the District Court may assume that

such evidence is credible, without passing on that issue, and

may thereupon receive. the declarations in evidence, and

that the jury may thereafter take such declarations into

account in passing on the questions of credibility and guilt

beyond a reasonable doubt. Carbo v. United States, 314

F.2d 718, 737 (9th Cir.), cert. den. sub. nom. Palermo v.

United States, 377 U.S. 953.

Moreover, even the hearsay declarations referred to in

the opinion of the Court below (App. A, infra, pp. 45a-50a)

contain not a word to show that Fried knew that Motto

lived in Connecticut or had any-reason to expect that there

would be any interstate telephone calls.° What the Court

held, however, was that ‘‘the totality of the proofs, includ-

ing testimony of declarations and acts of co-conspirators in

furtherance Of the Gllegal scheme, reveal the appellant

[Fried] as one who was right in the thick of things as a

central member, manipulating and closely supervising the

carrying out of the principal object of the conspiracy’’,

and that it could therefore be inferred~that he had ‘‘di-

rectly agreed to a scheme in which it was known that the

likelihood of use of interstate telephone calls was great’’

(App. A, infra, p. 50a). |

The Court’s approach, it is submitted, amounts simply to

resort to mere suspicion and speculation, which manifestly _

may not take the place of requisite evidence. United States

v. Crimmins, supra, 123° F.2d at 273-4; United States v.

Barnes, supra, 383 F.2d at 291; Twitchell v. United States,

supra, 313 F.2d at 429. Even the hearsay declarations thus

clearly fail to meet the standards of Ingram v. United

States, supra, 360 U.S. at 680, that the requisite evidence of

a defendant’s guilty knowledge in a conspiracy prosecu-

tion be ‘‘clear, not equivocal’’ and that it be not objection- -

able on the score of seeking to establish ‘‘charges of con-

® The Court’s opinion (App. A, infra, p. 47a) quotés from Itkin’s

testimony on direct examination (505a) that in November 1966, ’

when Marcus was planning to award the Jerome Park Reservoir

contract to Oakhill, Itkin called Motto at the latter’s home in Green-

wich, Connecticut and Motto told Itkin that Fried had “just called”

him to complain about this matter. The Government contended that

this showed that Fried had called Motto at his home “just” before

the call from Itkin. Itkin, however, changed his testimony on cross-

examination to state that what Motto said in that telephone conver-

sation was that Henry. Fried “just called him like the week before”

such al call the week before could well have been made to Motto

at his office in New York City. y

The Court also referred in.jts opinion (App. A, infra, pp. 47a-48a)

to Motto’s alleged hearsay declarations as to how well he knew

Fried. Any possible inference ‘based on such declarations is, how-

ever, completely refuted by Itkin’s testinfony that all references

made by Motto prior to April 1967 about his knowing Fried were

that “he knew him through Carl D’ Angelo,” and that it was not-uv'til

April 1967—about a year after the commencement of the charged

conspiracy—that Motto claimed to have spoken to Fried for the first

time (677a). 7

to ialegd about the matter (655a), and for all that appears, any |

‘

, |

> ;

_ spiracy * * * by piling inference upon inference’’ (360 US.

at 680). .

2. As to the Fifth ‘and Sixth Amendment rights of

_ a target of a Federal grand jury investigation who is

subpoenaed before the grand jury.

The important question here presented, not previously

determined by this Court, is whether the doctrine of

Miranda, Escobedo and Massiah is applicable to the secret

. interrogation before a Federal grand jury, pursuant to sub-

poena, of one who is a‘target of the grand jury’s investiga- .

tion. The matter also involves a conflict among circuits.

Petitioner Fried moved in advance of trial to suppress

his grand jury testimony for use as evidence (36a-39a). The

motion was supported by Fried’s affidavit that he was first

served with a grand jury subpoena on Sunday, December

17, 1967; that he appeared and testified before the grand

jury pursuant to that subpoena the next morning, December

18, at about 10:30 A.M.; and that when he left the court-

house after completing his testimony, he was continuously

followed by two FBI agents until about 1:30 P.M., when

they arrested him on the indictment herein (38a-39a).

The basis for the motion to suppress was that the sur->

rounding‘ circumstances demonstrated that when Fried

testified before the grand jury, he was a de facto defendant

or at least a target of the grand jury proceeding, and that

it was a violation of his Fifth and Sixth Amendment rights

to compel him to submit to secret interrogation before the

grand jury without the presence of counsel at such interro-’

gation (50a). The motion was denied by District Judge

Wyatt (App. B, infra, pp. 64a-67a), and a renewed motion

to suppress on the same grounds was denied at the trial by

the trial judge (810a). The Court of Appeals likewise re-

jected petitioner Fried’s contentions in this regard (App.

A, infra, pp. 55a-58a). | ae

It is submitted that the doctrine anid underlying policy of

Miranda v. Arizona (384 U.S. 436), Escobedo v. Illinois

(378 U.S. 478) and Massiah v. United States (377 USS. 201)

apply with equal force to a situation where, as here, one

een 23

who is a ‘target is subpoenaed by the Government for the

purpose of eliciting testimony against hin’ in a secret inter-

rogation without the presence of counsel. In Massiah,

this Court held that a defendant under indictment could ‘

not be subjected to. secret interrogation by the Govern-

ment in the absence of counsel, without violating his Sixth

Amendment right to counsel. That doctrine was there-

after extended, first in Escobedo, and then more broadly in

Miranda, on the basis of the Fifth as well as Sixth Amend-

ements, to encompass governmental ‘‘interrogation of per-

sons suspected or accused of crime’’ ‘‘in all settings in

which their freedom of action is curtailed in any significant

way”’ (Miranda v. Arizona, supra, 384.U.S. at 467).

It can hardly be claimed that in the face of the compulsive

force of the subpoena served upon him, Fried’s ‘‘freedom

of action’’ was not ‘curtailed in any significant way’’. See

Meshbesher, ‘‘Right to Counsel Before Grand Jury’’, 41

F.R.D. 189, 201.

Under Miranda, the rights of an accused whom the Gov-

ernment seeks to interrogate specifically inclade ‘‘the right

to consult with a lawyer and to have the lawyer with him

_ during interrogation’’, or, phrased in another way, the

‘fright to have counsel present at the interrogation’’ (384

U.S. at 471, 469).

The mere fact, emphasized by the Court below (App. A,

infra, p. 55a), that Fried was informed that he was a

target and was advised that he had ‘‘a right to consult

an attorney’’ and a privilege to refuse to answer incriminat-

ing questions (867a-868a), and that his attorney was per-

mitted ‘‘to sit in the.anteroom to give advice if the witness

so desired’’ (App. A,-infra, p. 57a), does not fully meet

the standards laid-down in Miranda. As this Court there

pointed out, ‘‘Even preliminary advice given to the ac-

cused by his own pe Sa can be swiftly overcome by the

secret interrogation process’’, and ‘‘the need for counsel -

to protect the Fifth Amendment privilege comprehends

not merely a right to consult with counsel prior to ques-

tioning, but also to have counsel present during any ques-

tioning if the defendant so desires.’’ (384 U.S. at 470).

)

Contrary to the view expressed by Judge Wyatt (App. B,

infra, p. 66a), it was not incumbent on petitioner Fried to

request that he be permitted to have counsel present in the

grand jury room. This Court thus made it clear in Miranda

that ‘‘An individual need not make a pre-interrogation re-

quest for a lawyer’’ (384 U.S. at 470). Nor can there be any ~

question with regard to a possible waiver, unless and until

the individual sought to be interrogated has been ‘‘clearly

informed that he has the right to consult with a lawyer ..

~ and to have the lawyer with him during interrogation’’ (384

USS. at 471). ;

Even prior to Miranda, four judges of the Court of Ap-

peals for the District of Columbia took the position in Jones

v. United States, 342 F. 2d 863, 867-71, in an opinion by

Judge Edgerton (two additional judges concurring on an-

other ground), contrary to the decision below, that it was a

violation of the Fifth and Sixth Amendment rights of a per-

son against whom a grand jury investigation was directed,

for the prosecutor to summon such a person before the

grand jury ‘‘and there interrogate him, isolated from the

protection of cgunsel and presiding judge and insulated

from the critical observation of the public.’’

It has further been observed that even ‘‘the logic of ©

Escobedo would seem to require application of its safe-

guards to grand jury and other investigatory proceedings,

whose purposes are to determine probable guilt.’’ See ‘‘The

Supreme Court, 1963 Term’’,:78 Harv. L. Rev. 143, 222-3.

It has also been observed that a person subpoenaed before

a grand jury has even a greater need than a person under

arrest for the presence of counsel, at each step of the inter-

rogation, in order to protect his ‘‘right to choose between

silence and speech’’ as regards incriminatory questions (cf.

Miranda v. Arizona, supra, 384 U.S. at 469), since the pex-

son under subpoena can refuse’ to answer only questions

which may tend to incriminate him and he requires ‘‘the

guiding hand of counsel’’ question by question. See Mesh-

besher, supra, 41 F.R.D. at 203; Jones v. United States,

supra, a inh 2d at 868.

en,

This Court’s five-to-four decision in In Re Groban (352

U.S. 330, 333), which was cited by Judge Wyatt (App. B,

infra, p. 67a), must be re-evaluated in the light of Miranda .

and Escobedo. See Meshbesher, supra, 41 F.R.D. at 205.

3. As to the effect of Itkin’s role as an undercover

Government informer as precluding his being con-

sidered a co-conspirator for the purposes of the co-con-

. spirator exception to the hearsay rule.

The importance of the question here presented is con-

firmed’ by the expressed policy of this Court to limit the

scope of the ‘‘very narrow exception to the traditional

_hearsay rule’’ relating to the admissibility of declarations

made by a co-conspirator. See Wong Sun v. United States,

371 U.S. 471, 491; Krulewitch v. United States, 336 U.S.

440, 443-5. |

The Government called Marcus as a witness before Itkin,

and Marcus was permitted to testify to a great number of

out-of-court declarations made-to him by Itkin concerning

the acts and declarations of the other defendants (207a-

209a, 210a, 213a, 216a-217a, 223a, 232a-233a, 236a, 253a,

2569-257a, 259a, 260a-261a, 264a;~266a-268a, 270a). Such

declarations were received in evidence on the theory that

they were.made by Itkin as a co-co pirator, i in furtherance

of the alleged conspiracy (197a-198a

The prosecutor made no mention ne his opening state-

ment (139a-14la) of Itkin’s being a Government informer,

and the defense had no evidence thereof or any basis for

objection on that ground until Itkin admitted to that role

when he was crgss-examined At ‘that ‘point, petitioners

promptly moved a mistrial and to strike the aforemen-

tioned Marcus testimony, on the ground that since Itkin had

been acting as-an undekcover Government informer, he

could not be regarded as -co-conspirator and his- out-of-

court declarations were not ‘admissible in evidence under

the co-conspirator exception to, the hearsay. tule (596a-

597a). The motions were denied (597a). The same motions

were again made, and denied, at the close of the Govern-

ment’s case \SPe-D02e, 909a). .

26 /

Itkin unequivocally testified on cross-examination—with- ,

out any denial by the Government—that despite his ap-

parently active participation in the alleged conspiracy, he

was not guilty of the charges in the indictment because he

was ‘“‘accumulating this evidence to give to the United

States Government to prosecute this case’’ and was ‘¢work-

ing for thé Government’’ (550a, 561a) ; that he was indicted

in this case ‘‘merely for purposes of cover’? (772a), and

the United States Attorney’s office had advised his attorney

that it would recommend that the indictment against him

be nolle prossed (753a, 758a-759a) ; that his intent through-

out his activities in this case was to make a full report to

the FBI when he had completed gathering the necessary

evidence (567a, 800a, 801a); that he had commenced his

role as a Government informer in 1962 (550a), when the

FBI asked him ‘‘to infiltrate organized crime as deep as

* * * [he] could’”’ (802a); that he carried out that assign-

ment by posing as a participant in various illegal activities

(552a-553a) ; that he reported regularly to the Government,

from 1962 through 1967 as well as in 1968 ( 5506; that while

he did receive instructions from the FBI from time to time

in the course of these activities, ‘‘Most of the time they

left’? him ‘‘on * * * [his] own’’ (727a) ; that his reason for

withholding the details of the Jerome Park Reservoir mat-

ter from the FBI until he had gathered all the evidence

concerned that as a matter utine the FBI would dis-

seminate the information in itS*feports among other Gov-

ernment departments and his secret role would be un-

covered (555a, 556a, 558a) ; that while the FBI did not know

‘ which he deemeg necessary bo was that he was

' the specific matter on which he was working in this case, it

did know that he was working on some matter for the pur-

pose of building a case for Government prosecution (567 a);

that he had notified the FBI of his becoming associated with

Marcus in‘their joint business venture known as ‘Conestoga

Investments, Ltd. at or about the time of its formation in

1965 (695a) ; and that he had also reported to the FBI on

June 1, 1966 regarding one of his initial meetings with

Corallo and Motto, though his report did not ‘disclose the

actual content of their conversation (557a). —

Indeed, the Government’s attorney in summation affirma-

tively sought to support Itkin’s credibility by emphasizing

_ his role as a Government informer, not merely after the

events about which he testified in this case, but for a five

year period which overlapped the period here involved

(1161a).

In rejecting petitioners’ contentions on this score, the:

Court of Appeals singled out three answers: given by Itkin

in the course of a lengthy cross-examination and held that

there was no ‘‘evidentiary basis’’ for the ‘‘contention that

Itkin’s participation in the conspiracy charged in this case

was as a Government Agent, in cooperation with the FBI,.

to help appellants provide proof of their guilt’’, thereby

overlooking all the foregoing evidence (App. A, pp. 30a-

38a). The Court of Appeals (id., p. 36a) further emphasized

that Itkin ‘“pocketed the mohey’’. Itkin testified, however,

that he had shared in ‘‘the, bribes’’ because ‘‘there was no

other way to,infiltrate’’ (589a), and that on some other

occasions the FBI had allowed him to keep monies which he

» had realized from illicit deals (708a).

The courts in other Circuits have squarely held that ‘‘one _ .

who acts as a government agent and enters into a purported

conspiracy in the secret role of an informer cannot be a co-

conspirator’’, since he ‘‘secretly intends to frustrate the

conspiracy.’’ United States v. Chase, 372 F.2d 453, 459 (4th

Cir.) ; Sears v. United States, 343 F.2d 139, 142 (5th Cir.).

The necessary consequence, as held also in the Second Cir-

cuit, is that the out-of-court ‘declarations of such an in-

former cannot be received in evidence as the declarations.

of a co-conspirator under the..co-conspirator exception to

the hearsay rule. Wnited States v. Morello, 250 F.2d 631,

634 (2d Cir.) ; United States v. Costello, supra, 352 F.2d at

855.

Notwithstanding the unequivocal showing made by Itkin’s

own testimony—on the evident basis of which the Govern-

ment intended to recommend that the indictment against —

Itkin be nolle prossed—that Itkin’s role throughout his ac-

tivities in this case was that of a secret Government in-

former whose intent was to gather evidence for Government

: 28

prosecution and thereby to frustrate the conspiracy, the

courts below have sanctioned the admission in evidence of

the many out-of-court declarations made to Marcus Sy

Itkin, on which the Government attorney relied in his sum-

mation as corroboration of Itkin’s own testimony (1163a).

It is submitted that prejudicial error was thereby com-

mitted.

_ 4, As to the permissible scope of the cross-examina-

* tion of a defendant’s character witness.

An important aspect of the general subject of cross-

examination of a defense character witness, considered by

this Court in Michelson v. United States, 335 U.S. 469, is

here presented, and it is submitted that the action taken

below in this case is in conflict with Michelson.

In cross-examining one Lustbader, a character witness

for petitioner Fried, the prosecutor was thus permitted,

over objection, to ask the witness whether he had ‘‘heard

in the community the fact that Mr. Fried had paid $20,000

to Carmine DeSapio on behalf of Consolidated Edison so

that Consolidated Edison would get a high line permit from

the City of New York’’ (1100a), and whether he had ‘‘ heard

in the community that Mr. Fried is able to handle and has

handled the biggest payoffs made in the City of New York’’

(1101a-1102a). The witness answered both questions in the

negative (1101la, 1102a). The trial court also denied peti-

tioner Fried’s motion for a mistrial (1100a), and instructed ©

the jury that the questions asked bore solely on ‘‘the credi-

bility’’ of the witness in purporting ‘‘to bespeak the com-

munity’s opinion’’ of petitioner Fried’s reputation (1100a-

1101la, 1263a).

The questions thus asked related to highly prejudicial

collateral allegations of other wrongdoing against peti- .

tioner Fried, which were obviously of a secret, unpublicized

nature and not shown to be likely to come to the attention

of the community at large. The quéStions thus did not meet

the standard indicated in Michelson that ‘‘the target of the

question ... [be] an actual event, which would probably

« AtrrepD Donatt, JR.,

result in some'comment among acquaintances if not injury

to defendant’s reputation’’ (335 U.S. at 481).

In such circumstances, it is submitted, the prosecutor’s

‘‘inquiry is without probative significance’’ on the issue of .

reputation and could only serve-the improper purpose of

| prejudicing petitioner Fried. Cf. United States v. Giddins,

273 F.2d 843, 845 (2d Cir.), cert. den. 362 U.S. 971. Indeed, |

the jury in the instant case was improperly permitted to

speculate that the subject matter of the questions related to

actual events which did occasion comment in the community,

and to infer that the witness’ qualifications ‘‘to speak on

behalf of the community’’ were in doubt in view of his

‘denial of any knowledge of such matters. Cf. United States

v. Beno, 324 F.2d 582, 588 (2d Cir.), cert. den. 379 U.S. 880.

Further, the practice relating to cross-examination of a

defendanf’s character witnesses ‘‘has been cogently criti-

cized —. on the ground of the jury’s inability to limit its

consideration of such evidence to the issue of teputation.”’

See United States v. Giddins, supra, 273 F.2d at 845. At is

Submitted that the entire subject should be reconsidered by

this Court, particularly in the light of Bruton v.' United

States, 391 U.S. 123, where the Court, albeit in a different.

context, rejected the previously accepted doctrine that it

could be: assumed that a jury would follow the trial court’s

mstructions as to the limited effect to be given to particular

prejudicial evidence. . |

CONCLUSION

For the reasons set forth above, this petition for a

writ of certiorari should be granted.

Respectfully submitted,

ArtHur Karcer,

Counsel for Petitioner, ©

600 Madison Avenue, -

New York, N. Y. 10022.

_ of Counsel.

September 18, 1969. 6

APPENDIX A

Opinion of United States Court of -Appeals

UNITED STATES COURT OF APPEALS

For THE SEconp Circuit

”

Nos. 331, 332, 333 & 334—September Term, 1968.

(Argued January 17,1969 —-—-Decided July 8, 1969.)

Docket Nos. 2086, 32687, 32688 & 32689

é 8

ad.

Appellee,

—against—

Antonio CoratLo, Henry. Friep, Danreu J. Morro and

‘SS. T. Granp, Inc.,

Defendants-A ppellants.

Before:

; Mepina, WaTERMAN and KaurMan,

Circuit Judges.

‘2a

Appendix A—Opinion of United States Court of Appeals

Appeals from .judgments of conviction in the United

States District Court for the Southern District of New

York, Edward Weinfeld, Judge.

Antonio Corallo, Henry Fried, Daniel J. “Motto and

S. T. Grand, Inc. appeal from judgments entered on a jury

verdict, convicting appellants of violations of 18 U.S.C.,

Section 371. See also 18 U.S.C., Section 1952.

Meprwa, Circuit ranges a

Antonio Corallo, Henry Fried; Daniel JSMotto and S. T.

Grand, Ine. appeal from j judgmefit convicting them of

conspiracy to use the teléphone as an interstate facility

‘with intent to violate the New York State bribery laws.

The federal statutes involved are the general conspiracy

law, 18 U.S.C., Section 371, and 18 U.S.C., Section 1952,

which makes it a crime against the United States to use

‘ an interstate facility with intent to ‘‘promote; manage, -

establish, carry on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of any unlawful ac-

‘: tivity,’’ including bribery in violation of state law. The

-— jndictment,\handed down December 18, 1967 charged

appellants together with James Marcus and Herbert Itkin

antt Charles Rappaport. Carl D’Angelo, Jr., is named as

a-co-conspirator but not as a defendant. Before the trial

Marcus pleaded guilty and the case against Itkin was sev-

ered. After a jury trial presided over by Judge Edward

Weinfeld, Rappaport was found not’ gy and ceailiin

Appendix A—Opinion of United States Court of Appeals

were convicted. The principal, but not the only witnesses

for the prosecution were Marcus and Itkin.

While the meetings, conversations and acts of the con-

spirators, and the various maneuverings, developments,

sub-plots and backings and fillings are complicated and

cover an extended period of time, the charge itself is a.

simple one. It is that Mareus, as Water Commissioner of

the City of New York, had the sole discretionary power to

award, without public bidding, on a cost-plus basis, a con-

tract involving an estimated cost of $500,000 to $1,000,000,

for the cleaning of the Jerome. Park Reservoir in the

Bronx; that appellants conspired with Marcus to arrange

a kickback from Fried and_S. T. Grand, Inc., Fried’s

company, if Marcus awarded the contract to Grand; and

that the interstate use of the telephone was reasonably in

the contemplation of the conspirators because of the neture

-of the negotiations and the necessity for-caution and se-

erecy incident upon the collection of the ki¢hoack, as Motto, .

a principal negotiator, was a resident of Connecticut.

SYNOPSIS OF OPINION

PART I

ian CONSPIRACY AND APPELLANTS’

PARTICIPATION IN IT.

Appendix —- of United States Court i —

ee . ° PART II

ALLEGED ERRORS IN THE INSTRUCTIONS TO

THE JURY AND IN REFUSALS TO CHARGE

. AS REQUESTED.

Proor or Events. Arrer THE AWARD oF THE CONTRACT TO

Frep on NovemBer 23, 1966 Was ReLevant TO THE

Crime CHARGED IN THE INDICTMENT.,

~Wuatever May Have Been Irxin’s Contact WitTH THE

FBI Noruinc 1x Tuts Recorp Supports APPELLANTS’

Cram THat He Participatep In THE CONSPIRACY

as A GovERNMENT AGENT.

2 *

Itkin’s Participation in This Conspiracy Was Wholly: on

Hlis Own. The Record Does ‘Not Sustain Appellants’ Claim

T hat Itkin Participated as a Government Agent oe

to Bea Conspirator. .

The Request for Instructions on the Subject |

of Entrapment Was Properly Denied.

Appendix A—Opinion of United States Court of Appeals

The Trial Judge Properly Charged That ‘in Prosecutions

in Federal Courts for the Commission of Federal Crimes

the Testimony of an' Accomplice Requires No Corroboration

to Sustain a Conviction.

Tue ReQvests To CHARGE ON THE SUBJECT OF

Extortion Were Property DENIED.’

PART III

AFTER CONSIDERING ‘“‘ALL THE EVIDENCE IN

~THE CASE” THE JURY WAS WARRANTED IN

__ FINDING THAT FRIED AND GRAND PARTICTI-

.PATED IN THE CONSPIRACY WITH REASON-

ABLE ANTICIPATION THAT THE INTERSTATE

TELEPHONE WOULD BE USED BY THE CON-

-SPIRATORS OR SOME OF .THEM TO EFFECT

THE PURPOSES OF THE CONSPIRACY. .

- PART IV

THE CONDUCT OF THE TRIAL.

Neviesisaiee A—Opinion of United States Court of Appeals —

A -

Tue Granp Jury Testimony or FRigp AND Motto Was

Property Recetvep anD Ir Was Not an ABUSE

or DiscreETION To Deny THE Motions

FOR A SEVERANCE.

We Finp Notuinc ImMpRoPER oR PREJUDICIAL IN CERTAIN

CoMMENTS BY THE TRIAL JUDGE.

C 1%

In View or THE Direct ExaMINATION oF FRIED anp His

TESTIMONY ON CROSS-EXAMINATION BY COUNSEL FOR

OTHER APPELLANTS TO WuicH No Ossection Was

RaiseD oN F'R1ED’s BEHALF It Was Proper FOR

THE TRIAL Jupce To Ask FRiep WHETHER -

Prior TO THE TRIAL He Hap InrorMeEpD

‘tHe Prosecutor THAT Part or

- His Testimony’ Brrore THE

Granp Jury Was FAtse.

ae PART I

THE CONSPIRACY AND APPELLANTS’

- PARTICIPATION IN TIT.

Even a superficial study of the record indicates-~a sub-

stantial basis fdr the findings of the jury that there was

in fact such a conspiracy and that éach of the appellants

was a knowing participant in it. Fried testified and ad-

_ Appendix A—Opinion of United States Court of Appeals

mitted that he told Itkin he had: paid $40,000. There was

proof.of the extensive use of the telephone both to Motto

at his Connecticut residence and from Motto in Green-

wich, Connecticut, to various members” of the conspiracy

in New York City, corroborated in many instances by tele-

phone toll slips produced by the Telephone Company.

Moreover, the web of_esSociation between th® appellants

and Marcus and Itkin is clearly established. With this in

mind, we turn to our chronological statement of the facts,

based upon the view of the testimony and exhibits most

favorable to the prosecution.

James Marcus began his career in city politics by sery-

ing as an assistant campaign manager to John Lindsay ©

as Lindsay ran for election as Mayor of New York in the

Summer and Fall of 1965. In June or early July, 1965,

Marcus was introduced to Herbert Itkin, a lawyer with

connections in labor circles. He came to see Itkin fre-

quently, until, after the election, he saw him practically

every day. Itkin, in turn, introduced Marcus, in July, to

Daniel Motto who’was President of Local #350 of the.

Bakery & Gonfectionery Workers Union in Long Island

City, and head of the Labor Non-Partisan League. Mar-

cus hoped to gaih an endorsement of Lindsay by Motto

and by Motto’s’ union supporters. With this end in view

. Marcus saw Motto several times during the campaign.

After Lindsay’s election in November of 1965, Marcus con-

~’ tinued to see Motto and at one such meeting, in December

of that year, when they went to a diner next door to

Motto’s Long Island City office for a cup of coffee, Motto

introduced Marcus to Antonio Corallo, describing him

Appendix A—Opinion of United States Court of Appeals

simply as ‘‘my cousin Tony.’’ In that same month, Itkin

and Marcus, with several others, formed Conestoga In-

vestments, Ltd., to discover and promote the financing of

investments in foreign countries. :

In January of 1966, as the,.new administration took office, 3

Marcus was given an office at the Municipal Building, in

the Water Department. Marcus acted for a time as a liaison

between the new administration and the Water Department, :

and, once he was sworn in as Assistant to the Mayor in

March, 1966, he began to oversee the activities ofthe

Department. In the course of this supervision, in March,

he learned from Abraham Groopman, then Deputy Chief

Enfineer of the Department, that the J erome Park

Reservoir in the Northern Bronx was in bad shape. The

previous fall, in November of 1965, heavy winds had roiled |

the reservoir /and an accumulation of sludge that lay at the

bottom of = basin had risen to the top and gone out into

the water distribution system of the Bronx. There were

many complaints of dirty water, odors and bad tastes.

Temporary measures were taken but, as the problem re-

curred, more drastic measures became necessary. The

reservoir had not been cleaned since its opening in 1905

and its huge size—97 acres in surface area and 750 million

‘gallons of water in capacity—as well as the apparently

huge amount of sludge presented difficulties beyond the

resources of the Water Department to remedy.

. An emergency contract was proposed -by the engineers Sans

~ of the Department to Marcus. By this ‘procedure a qualified |

contracter is selected. by the Commissioner to perform the

job. The contractor is*paid his costs plus an allowance for .*

Appendix A—Opinion of United States Court of Appeals

overhead and a specified profit, subject, of course, to audit

and revision by the Comptroller’s office. The letting of the

contract is within the sole discretion and. is the sole decision

- of the Commissioner, but he normally takes into considera-

tion’*the advice and recommendation of his engineers.

Emergency contracts are used when, as in the Jerome Park .

situation, the job is too large for the Department, the scope

and method of work are not fully determinable, and the

operation must be performed. within a limited ‘amount of

time, that is to say, in the Winter of 1966-1967, so the

reservoir could be back in-service in the Spring of 1967.

Accordingly, in the Spring and Summer of 1966, discussions

and consultations occurred within the Department concern-

ing the best method~to be used and the best contractor to

do the job. |

Marcus, gonawkikc. in April, 1966, purchased 2 000

shares of Xtra stock at an average cost of about. one

‘hundred dollars a share. He purchased the stock on margin,

which meant that he had to put up only a small portion of

the purchase price in cash and the balance would be financed

by the brokerage house, in this case Koenig & Co.

Shortly after the purchases, the stock went down dras-

tically, falling to the low eighties. Koenig & Co. called

repeatedly for more money to cover the stock purchases.

Itkin had invested $6,000 of his wife’s money in the stock

and Marcus turned to him for advice. IfRin suggested that

he might be able to obtain some money from Motto. So.

Itkin visited Motto at his office in Long Island City, told

him that Jim wanted help on stock he was buying, and

asked for a $25,000 loan. Motto replied that he might

10a

Appendix A—Opinion of United States Court of Appeals

_make the loan but ‘wanted to be sure that Marcus would

‘‘play ball’’ with him and also that he would retain Charles

- Imperial in his position in the Water Department. - Itkin,

later that day or: the next, phoned Marcus and repeated

the conversation, asking:.if Marcus would retain Imperial

and ‘‘Do you want to play ball in the City?’’ Marcus ——

‘‘Okay, get the monéy from him.”’

When Itkin called Motto back, Motto said he could lend

only $20,000, not 25, and wanted to see Marcus before he

did so. They arranged a meeting in Motto’s car on 46th

Street, between Madison and Fifth, where Motto usually

picked up his wife in the ot afternoon after “her work.

* At the meeting, which was in April, Marcus agreed to

retain Imperial, assured Motto that the stock would go up/

that the profits on it wouJd be shared with him, and tha

he would ‘‘play ball.’’ The money was not passed at tha

_ meeting but Itkin later received $12,000 from Motto, which

represented a payment of $12,500, with interest deducted

in advance. Itkin passed it on to Marcus who deposited .

it in his Koenig account, in the third week in April, 1966.

The $7,500 balance of the loan was received and deposited

in May.

Motto had told Itkin about the Jerome Park Reservoir

in April and Itkin, in mid-May, casually mentioned it to

Marcus. Marcus was surprised: how did Itkin know about

it? Itkin replied that it was all over the street ard rumored

to be a contract larger ha million dollars. They then

disepssed it a bit in general)terms. Motto, however, kept

after Itkin, trying to arrange for the handling of the

contract. When this was reported to Marcus he understood

it to mean ‘‘that he (Motto) would find a contractor or

= .

{- lla

Appendia A—Opinion of United States Court of Appeals

negotiate with a contractor and there would be a kickback.”

- Late in May Motto told Itkin: |

_ Look, I did the, job, I got you the 20,000. Now there

_is a big emergency contract in the City of New York

‘and Carl D’Angelo, Jr. is pushing me to get it for him.

I would like to make sure that Jim is going to do this

for us because this is our first big one and it is the

: biggest that was ever given out.

And he said that if Marcus would go along, he would in-

troduce Itkin ‘‘to someone higher up.’’ Shortly there-

after, Itkin went back to Marcus. Marcus wanted to delay

and hold up Motto since Motto had been slow in delivering

the balance of the loan. When Itkin said«they could not

hesitate, Marcus gave his agrocment.- Itkin relayed this

to Motto. ; =

Very late in” May, and late -at night, Motto took Itkin

to the Pancake House in Queens and there introduced him

to Corallo. Corallo was with some other people so, as he

got up to leave, only said ‘‘I.am glad you are going to

work on the contract with us, we will get — in a

few days.”’

_ A few days later, but still in May, 1966, ‘Ttkin and Motto

met with Corallo again at a diner in Queens. Corallo an-

nounced they were going to use Joe Pizzo as the negotiator,

‘‘Pizzo is going.to handle it with Fried.’’ And, he ex-

plained, this was ‘‘Henry Fried of McKay Construction,’’ .

that’ Pizzo was his labor relations consultant and ‘*they

have been in many deals together.’’ Corallo asked how

~much Marcus’and Itkin wanted and Itkin replied that he

‘would have to talk to Marcus. Then Corallo left and Motto

12a C

_- Appendix A—Opinion of United States Court of Appeals

immediately complained to Itkin that he thought he could

‘ do better and would use D’Angelo instead of Pizzo.

Itkin related all this to Mareus and emphasized that .

they would have to pick a figuye. About two weeks later, -

in mid-J une, Itkin and Marcds met at Itkin’s office, which

was at 300 Madison Avenue. They calculated they needed

about $75,000 to cléar their stock debt.- Since they thought |

the contract would run about one million dollars, they chose —

_ Ty per cent as their figure which, if everything ran ac-

cording to schedule, would give them the money they

needed. -

Itkin then met with Corallo and Pizzo at Gian Marino’s

Restaurant on 59th Street and Lexington “Avenue. Itkin

said that Marcus wanted 7% per cent. Pizzo said it was

too high. Corallo told Pizzo to get it. Pizzo said he would

try. Soon after that and still in mid-June, Motto met with

Marcus and Itkin on 46th Street and reported that nego-

tiations were going terribly, they were asking too much

money, and that he, Motto, could do better.. Motto also

asked Marcus to come to Atlantic City for his Union Con-

vention. | 2

Marcus did drop by the convention on June 18, 1966.

. Motto and Marcus and their wives chatted. Mrs. Motto

_ mentioned what a difficult time she was having in getting

her daughter into a good school in Greenwich, Connecticut,

where they lived, and she asked Mrs. Marcus if she could

help. Then, after some socializing with the various dele-

gates, Motto and Marcus -went off into a corner. Motto

said that things looked bad with Fried and that he could

do: better than Pizzo. Marcus replied that he didn’t know*

what to say. |

13a x

Appendix A—Opinion of United States Court of Appeals

For the rest. of June and until mid-August matters lay

- dormant. Itkin went out of the country for July and Mar-

cus was on vacation in Maine during early August. Once

_ back in the City, Marcus and Itkin met with Motto, in the

third week in August, at-the Chambers Street Restaurant

in Queens. Motto suggested that they were asking too

much money and that they should consider coming down.

Late in August, Marcus lunched again with Motto but with-

‘out Itkin and Motto again said he could‘do better than’

Pizzo in handling the negotiations. Motto related how well

and how long he had known Fried, how they both shared

an interest in horses, and how Fried had been ‘‘doing con-

tracts’’ for a long time.

In early Septentber, Motto, Itkin and Corallo met at

the Pancake House in Queens and at the Loren East Res-

taurant in Manhattan to discuss the progress of the nego-

tiations. Itkin learned for the first time at these meetings

that Corallo and Motto were seeking 714 per cent for them-

selves in addition to the 74% per cent for Marcus. This,

Corallo and Motto said, was too much, the price had to

be lowered. Itkin complained, ‘‘Tony, I didn’t think you

were going to ask for the same amount. It is the Commis-

sioner who is doing it and we’want them to work for us.’’

Motto replied:

Listen, the guy that picks up the green should get 15

per cent for himself, and that is Pizzo, so there is

nothing too much that you are asking: You come down.

Why don’t you talk\to the Commissioner and see

whether, he will reduce it.

Itkin agreed to talk to Marcus but predicted he would be

~unhappy with it. Itkin relayed back the message from

14a

Appendix A—Opinion of United States Court of Appeals

“Motto and Corallo that they settle upon a smaller amount. .

Marcus, however, was concerned with. his financial pusi-

tion. The price of Xtra’ had dropped to the low 40’s and

Marcus was getting calls from Koenig seeking more money

for the margin agcount. In addition, he was considering

purchasing more Xtra to lower his average in the stock.

Marcus suggested to Itkin that he ask if Corallo would -

lend him ten thousand dollars and if so, he would consider

coming down. Rae:

On the morning of September 27, 1966, Marcus was

sworn in as Water Commissioner. That afternoon he went

over to see Itkin and Itkin said he was going over to the

Loren East to see Corallo. He suggested that Marcus call

there in a few minutes to see if the coast was clear. When

Itkin arrived, he found Corallo and Pizzo seated with

Armand D’Angelo who had been Water Commissioner in

the Wagner Administration. Armand is the father of the

Carl D’Angelo, Jr., a lawyer, named in the indictment as ~ *

a co-conspirator. When Marcus phoned, Itkin told him to

come over. As he arrived, he was met by Itkin near the

- hatcheck room. Marcus hesitated about going in when he

saw D’Angelo. To delay, he made a few phone calls and’ ;

_as he finished, he saw D’Angelo leaving.’ Marcus and

D’Angelo exchanged greetings and D’Angelo wished Mar-

cus well in his new job. Marcus then went in and joined

Pizzo, Corallo, whom he recognized as the man he had met

in Decémber at the diner near Motto’s _ and’ Itkin at

a new table.

Corallo stated they were asking for too much’ money,

the price had to come down. Marcus replied that he did

| ire

| “1a

Appendix A—Opinion of United States Court of Appeals

not know they had been seeking 7% per cent on top of his

. Share. Then he inquired about the loan. Corallo said if

' they came. down, he would make the loan and that he

thought there was going to be a deal> Itkin then turned |

to Marcus and suggested 5 per cent, a ‘figure they had —

previously discussed between themselves. Marcus agreed

to the 5 per cent. This meant a total of 10 per cent, instead _

of 15 per cent:

On September 28th, the next day, Corallo and Itkin met

_ at 300 Madison Avenue. Corallo said the deal was dead;

* Pizzo had met with Fried and his brother and they just

would not. pay that much. Itkin suggested they try Motto

who had been seeking to handle the deal all along. Corallo

said ‘*fine.’’ Later Itkin callgd Motto who agreed to handle

. it but said that a total of 10 per cent was too much and

he would handle it at maybe 5. Itkin asked why. Motto

replied: | ; , | a

Seen Carl told me Henry Fried wont pay a dime

over five. He is used to paying five and that is all he

is going to pay.

Itkin told Marcus that Motte was going to handle the

negotiations. Itkin then called Corallo and related Motto’s

advice. Corallo suggested they get together with Motto

and a meeting was arranged at a luncheonette on 46th

Street. At the meeting which was around the end of the

- month, Motto stated:

Look, Tony, I know I can get it, and there is no doubt

_in my mind, but I can’t get more than 5 per cent. Now,

is this going to be satisfactory to the Commissioner

and is it going to be satisfactory to you? What are

we going to do?

16a

Appendia A—Opinion of United States Court of Appeals

Corallo replied:

If that’s the best you can do, that? s the best’ you cat i

do, and the Commissioner will just have to go along

with us. |

Itkin then asked whether Marcus would get his loan if

he went along at 5 per cent. Corallo said yes.

Karly in October, Itkin told Marcus that he would have

to come all the way down. Marcus inquired’ whether he

would get his loan still and demanded that he get 3 per

cent and ‘the rest could, share the remaining 2 per cent.

When he got an affirmative answer, he agreed to the new

and final total of 5 per cent. Itkin next went to the Loren

East Restaurant to meet Corallo. Itkin said that the Com-

missioner was agregable to the 5 per cent and asked if

Corallo had the loan money with him. Corallo asked

whether Itkin was sure the Commissioner would agree.’

When he said yes, Corallo handed the money to Itkin in

~ an envelope. Itkin then called Rappaport at the 300 Madi-

son Avenue office.and told him to come over and pick up —

the money since Itkin was leaving fe trip and did not

want to take the cash.with ‘him. CoraHe was wary of this

arrangement but acquiesced.

Meantime Marcus was experiencing pressure on behalf

‘of Grand from another source. Vincent Albano, Republi-

~ ean County Chairman for New York County, had been sug-

gesting Grand and Fried since early in the fall. In re- ;

sponse, Marcus had suggested to Albano that Fried send

a letter to the Department listing Grand’s qualifications

and equipment. On September 7th Grand sent the letter.

In mid-October, Albano called again’ and suggested that

ee. 17a

rae es of United States Court of Appeals

Marcus come to his ‘suite ‘at the Hilton Hotel to meet

Fried and have a drink with him. - Marcus did and ‘was

introduced to Fiyed with a comment by Albano that Fried

had always been a heavy contributor to the Party and he,

Albano, would appreciate any work that could be given to

Fried. He repeated, he would be very appreciative.

Albano was not, however, the only Republican interested

in the contract. Joseph Ruggiero, an official of the New

York County Republican Party, had approached Marcus

early in the fall and suggested that Oakhill Construction

Company be considered for the job. Although it was not

| specifically mentioned at first, Marcus assumed that they

also were offering a kickback. Ruggiero had followed up

his suggestion with several phone calls. Although Marcus

knew that some people from Grand had appeared at the

Water Department on October 11th and that Groopman

had suggested Grand was the best qualified dontractor for

‘the job, still, to keep the field open, Marcus told Groop-

_ man to interview some additional firms.

Towards the early middle of October, Itkin returned

from his trip to find that Marcus needed more money to

cover a purchase of another 2,000 shares of Xtra stock.

In about the third week in October Marcus suggested that

they bring in Corallo again, but this time as an investor

-for an additional $10,000. Itkin said he would talk to

Corallo about it. -When he called Corallo, Corallo wanted

to know first whether they had a deal. To check, Itkin

_ called Motto at his home in Connecticut. Motto replied he

would meet them at 46th Street. A day or so later, Motto,

Itkin, and Rappaport met at 46th Street. Motto said: ‘It’s

18a

- Appendiz A—Opinion of United States Court of Appeals

- a deal, we got it for 5 per cent. Now, all we have to do is

push this.’’ He also said that the payoff would be made

all at once. On the next day, Itkin contacted Corallo to

tell him the good news, but Corallo already knew. Itkin

asked about the investment. Corallo indicated he would in-

~ vest but wanted a 4 for 1 margin at 40 and wanted to see

Marcus before he. agreed. Shortly thereafter, Marcus and

Itkin drove over to the Tower’Hast Restaurant at 72nd

Street and 3rd Avenue to meet Corallo. Itkin went inside,

found Corallo with some other people, and after a wait

took him outside. While they were walking out, Corallo

said that he wanted it understood that for his $10,000 he

would get $40,000 worth of stock, the 4 for-1 deal, and that

-he would share in the profits, if any, when the stock went ©

up. Itkin agreed and'they walked outside to meet Marcus.

Corallo asked Marcus: ‘‘Well, now that we have done

Jerome Park can \we do some other things?’? Marcus

agreed. Corallo then repeated his 4 for 1 proposal. Marcus

again agreed and thanked him. Corallo later. delivered the

money to Itkin and Marcus used it to purchase the 2,000

additional shares of Xtra. Marcus and Itkin also borrowed

Vamamecigh $5,000 from Motto.

Relative to the split-up. of the 5 per cent, Itkin, Corallo,

Motto and Marcus met at 300 Madison Avenue in late

October. Corallo said to Marcus: ‘‘3 for you, 2 for us.”’

Marcus understood that to mean that he would receive 3 ©

per cent and that Corallo, Itkin and Motto would. split the

remaining 2 per cent. *

Marcus, however, was still considering Oakhill. On No-

vember 2nd, Oakhill’s representative had come to a meeting

at the Water Department. Marcus sat in and was told, after

\ ;

19a

‘

Appendix A—Opinion Pf. United States Court of Appeals

the meeting, that Oakhill was qualified. That same day

Ruggiero showed up at the Water Department and prom-

ised that if Oakhill received the award, Marcus would get

5 per cent of the price for: himself. This apparently con-

vineed Marcus, for around the 16th of November he told

Groopman to prepare the letters notifying Oakhill that they

were to receive the contract. Groopman in turn told Becker,

his assistant, to make ‘up the letter Si Becker also called

Oakhill to alert them to the job. On November 18th, the

letters were typed and presented to Marcus who put the

_ letters away in his desk until he could talk to Itkin, who

was out of town.

When Itkin returned, he was first wonstintndl by a

Wa said that all hell had broken loose, Marcus had double _

rossed them by awarding the contract to Oakhill, and that

‘ Corallo and Motto had been up at 300 Madison Avenue

constantly and were ‘‘wild.’’ Itkin reached Motto. one

evening at his home in Connecticut and asked what was

_ the problem. Motto was not amused:

It’s no sieht, it’s a complete double cross. Henry

Fried just called me and told me that he found out that

Oakhill was getting the contract. Now, what kind of.

a game are you playing? * * * You are playing with »

the wrong people if you’re going to play this way.

“Later in the week when Corallo reached Itkin, the refrain

was the same.. A day or two later, on November 21st or

22nd, Itkin went down to the Municipal Building to talk

to Marcus. They went outside and walked around the

Municipal Building. Marcus acknowledged that he was

awarding the contract to Oakhill, saying he had been

pressured into it. Itkin was: ‘frenzied and screaming:

}

{ -

® sg 20a ; « - c

Appendix A—Opmion of United States Court. 1 or opeat

If you are talking about pressure, you'r ’re insane and

you’re crazy, they’ll kill you before they let you get

through this sort of ‘thing, and what the heck did you~

take the money from both Tony and — if you are

going to play this way.

Maicus kept walking, saying he didn’t know what to do.

Itkin warned him that he had better call Tony and Danny

if he was going to persist in awarding it to Oakhill; if not,

Itkin would call ‘and say the contract is for Fried. . Finally,

Marcus gave in and said he would award the contract to

Fried. i

Marcus went back inside the Municipal Building, The

next day he called Groopman into his office and told him

to draw up the letters again, awarding the contract to —

Grand. He said he had to, do it because of political pressure.

Groopman directed his secretary to do so and called Grand

to alert them. The letters were signed on that day, Wednes-

day the 23rd, and sent off to Grand who received them that

Friday. The letters were dated the 18th because the

secrétary i in her haste to rewr ite the letters in the name of

Grand rather than Oakhill had copied the date from the

Oakhill letters.. Itkin, meanwhile, had ‘ealled- Motto in

Connecticut to ‘notify him that Fried was getting the

contract.

Now that the contract had been awarded, oF Itkin —

and Corallo were eager fo get.the money. Marcus tried

to reach Motto both at™home and at his office but failed.

Corallo kept pushing Itkin to contact Motto. Finally, in

December, Itkin did reach Motto. Motto suggested they

meet and a meeting was set for mid-December at 300.

Madison Avenue. Motto, Corallo, Itkin, Rappaport and

aia |

Appendix A—Opinion of =. States Court of Appeals |

“Marcus ic at the en Marcus arrived late and was

et outside by Itkin, who said: ‘‘Tony wants you to raise

the roof with Danny and-see if we can get. the money.’

- Marcus went in and demanded :

Danny, you screamed and you yelled and you wanted

your thing. Now I’ve done it. I’ve completed the

contract. Where i Is the money?

Motto answered that Fried was very experienced, that he .

— hard to contact, that he could not pay the whole amount

"because he did id_not know how much the contract would —

amount to but he would pay 25 per cent as soon as a rough

estimate could be made of the price of the entire contract. |

And that estimate would be madé when the sludge had

been lifted off the bottom. He promised that if they would

agree, ‘‘Henry has told me I can ask for it and I will have it -

in a minute’s notice.’’ They agreed. ) =

_ Later in December Itkin again came down to the er

Department to visit Marcus. He told Marcus that he had

‘\ misunderstood the phrase ‘‘3 for you,-2 for us’ at the

October meeting. Itkin now said'that the split was to be

2 per cent for Marcus, 1 per cent each for Itkin, Corallo

and Motto; in other words the ‘‘you’’ referred to was Itkin’

and Marcus together. Marcus thought that this was a heck

of a time to tell him but that nothing much could be done

as the contract had been let. Itkin told him to relax for

they had many other projects in the works. :

Marcus and Itkin repeatedly tried to contact Motto in

December and January as no money was produced. Marcus

did reach him in Greenwich but always there was an excuse.

Most often the excuse was that Fried ‘was hard to reach. -

b2a

Appendix A—Opinion of United States Court of Appeals

A little past mid-January, Marcus and Itkin each found

out from Rappaport that the first installment had been

paid but not in a fashion likely to please them. Motto had

received a payment in excess of - $10,000. He had then

_taken something off the top and put it in his pockét, next

he deducted $5,250 as repayment of his October loan with °

accumulated vigorish,’ and then had deducted $4, 000 as the

- share of himself and Corallo. This left a mere $750. When

Rappaport confined, Motto gave him an additional

$1,000. Thus, Rappaport received only $1,750 for Itkin and

Marcus. Te: :

\ Soon after this. initial payment, o—" complained to °

Itkin that he had not received his share from Motto. Itkin

kept calling and trying to push Motto but without success.

Finally, i in March, Corallo and Itkin received a call from

Motto who told them to come over to 46th Street. They

met Motto there and then he and Itkin walked over to the

Hotel Roosevelt. There, in the men’s room, out of a: pay- »

ment of $5,000, Motto handed over $3, 000 for oe and >

Itkin and $1,000 for Corallo. ©

Towards the end of March, Corallo told Marcus and Itkin ~

that he wanted to get out of. the Xtra stock; which had gone

up to somewhere in the 80s.‘ Mareus and Itkin met with

Corallo at 300 Madison Avenue and calculated that Corallo

was’ due $18,000 on. his original investment of $10,000.

They then withdrew the money from the margin account

and paid him. -

Itkin. kept pursuing Motto by phone is in hope of further

‘payments. He reached Motto in early April i in Connecticut

1 “Vigorish” is the underworld term for usurious interest charged

by loam sharks. Motto was charging Marcus 2% per week.

Appendix A—Opinion: of United States Court of Appeals:

and Motto promised that he had a definite appointment »

with Fried and would come by 300 Madison ‘Avenue after-. : |

wards. Hé.did come by but said Fr + had been busy and

- couldn’t see him. Corallo was angry:

Danny, do me a favor. Call him now, will you, and

. tell him you re coming over. Just do me a favor.

Motto replied he was just there. Corallo repeated:

I’m asking you to please do me a favor and call him.

‘ Motto got on the phone, called **Carl,’* not Fried, and said: 2

“*T’m coming up for that thing, see that you get it.’? Motto

hung up and said to Corallo that he would’ see them later.

.Corallo said no and ordered Itkiii to go along with Motto.

They went over.to 50th Street and 6th Avenue where. Motto -

made another call, asked for Carl, and said’: “T’m coming’

up, I’m downstairs.’’ He then went? up, came down, and -

suggested they walk across to a coffee shop: They sat

down and then Motto slipped Itkin $3 ,000 under the table.

Itkin pointed out that Corallo was waiting for his money

back at the office and so Motto slipped an additional $1,000 .

-under the table. ‘They Itkin went back to the office, alan

Corallo and distributed the rest.

Within a week, later in April, a fourth: ‘payment was

made. Motto called up,- said ‘*we’re lucky,’’ for he had re-

ceived another payment. ‘and suggested they meet at 50th.

- Street. They met there, Motto went upstairs, came down

and then started driving. Itkin back to his office. In. the car

he passed another $3,000 but this time Itkin did not ask

for Corallo’s share since he was not going to see him. He

went back to the office. Corallo had ee in SO Itkin ,

gear ate atone epee el “opm

Appendiz A—Opinion of United States Court of Appeals

24a

told -him that Motto would pay him. Itkin later notified

Marcus of both payments. On April 24th, 1967, work on the

reservoir was finished.

Corallo kept pushing for more money, so a meeting

was set up at 300 Madison. Avenue in mid-May. Corallo,

_ Itkin, Rappaport and Marcus were there first. Corallo im-

mediately complained that he was not receiving much

money. Marcus joined the refrain by complaining of the

‘‘vigorish”® that Motto had charged on the loans. This sur-

prised Corallo who then told Rappaport to call and see if

Motto was on his way. Rappaport reported back that Motto ,

had left. When Motto walked in, he and Corallo and Itkin

went into another room. Corallo ordered Motto:

Put the money down on the table and let me explain

something. J haven’t been getting my share. I’ve laid

. out a lot of money in other things. I want it off the

top now.

" sCorallo took off a sum of money and then bickering ‘ensued

about distribution of the rest. It’ finally came/ down that

_ the’ share of Rappaport, Marcus, and Itkin of this $5,000

- installment would be $500. Itkin commented that this was

_ insane, that Marcus was walking around outside waiting

for the money, and all he could show. would be $500.. Motto

suggested that Itkin tell Marcus they had a lot of expe

Itkin went outside, told Marcus of the small saviaiiae.

_ Marcus replied angrily> ‘‘Well, this is.a hell of a note. .

That’s the last deal I’m going through with these fellows. ee

Itkin returned to Corallo and Motto, relayed Marcus’ mes- ”

_ sage, and urged that they were silly not to take care of him ~

now if they wanted to do future deals. Corallo ‘said to

258

Appendix A—Opinion of United States Court of Appeals

Motto: ‘‘Danny, all right, you and I will each give him a

hundred dollars more.’’ Motto walked outside, found Mar-

cus in the men’s room, and said ‘‘ Here, this is for you,’’

gave him the $200 and walked out. About 10 minutes later,

Itkin ran into Marcus who complained ‘‘ Big deal, they gave

me $200 more, I’m supposed to be thrilled.’’ Itkin explained

that Corallo had directed Motto to givg Marcus the $200 be-

cause of the vigorish payments. During the end o*gMay,

Itkin continued to push for further payment. Around the

end of the month, Itkin reached Motto finally and Motto

said that they had to meet and told him to be at Motto’s

office the next day. Motto took the initiative:

You know, you’re screaming for another payment,

Henry Fried just showed mé a, little book which shows °

seven payoffs. Now, what are you talking about?

There is very little money left for us.

Itkin replied: ‘‘ Danny, that can’t be. There were five pay- |

offs. I picked it up four times, Charlie picked it up once.’’

Motto replied:

How would you know? You’re running back and forth

all over the world. Charlie probably picked up some

extra payments.

Itkin replied that he was positive aici had not picked

up extra payments. Motto said to talk to him anyway but,

' regardless, there was only a few thousand dollars left.

Itkin then spoke individually to Rappaport, Corallo, and

Marcus. ‘Then the four met together at 300 Madison Ave-

nue in mid-June. Itkin first accused Rappaport who swore.

that he hadn’t taken anything extra. Corallo told him

not to gct eXeited but the only thing to do was to put it

26a

Appendix A—Opinion of United States Court of Appeals

on Motto at a group meeting. A meeting was arranged

at a luncheonette at 45th Street and 1st Avenue and Corallo,

Itkin, Rappaport and Motto met. Motto insisted that they

were confused, that Fried had it all dows in a little book

and asked whether either Itkin or Rappdport had any rec-

ords. When they said no, he replied: ‘‘Well, all right, .

Henry Fried must be right, he has it down in a book.’

Corallo interrupted: ‘‘All right, I heard enough, I’m sick,

I don’t want to heer another word. How much more is

left??? Motto said $2500. Corallo said that $1000 had to

_ go to Pizzo. for the work he did for which he had not yet

received anything, and the would go to the Commis-

sioner. Motto agreed and “aie would get the money

from Fried. But shortly thereafter, Itkin heard from Motto

that only $1600 not $2500 was due and owing. Corallo said

all right but that still $1000 had to go to Pizzo and the

Commissioner had to have the rest. And from then on

throughout June and July and August, Itkin, Marcus and

Corallo were to seek in vain for the remaining $1600.

In July, 1967, Fried phoned Marcus and invited him

_to have a drink. This was nothing new for throughout the

_ Spring and Summer of 1967 Fried had called Marcus and

. invited him to have lunch or a drink with him. Marcus had

consistently refused but this time he accepted. Fried sug-

gested the Hotel Commodore later that afternoon. On the

way there, Marcus picked up Itkin who suggested that after

a few moments, Marcus should disappear and Itkin would

see what Fried /really wanted. a

in and found Fried already there. Marcus

introduced Itkin to Fried as his friend and said that ‘‘any-

thing you have to say you can say in front of him.’’ They

—— 9?

Itkin interjected:

: 27a

Appendix A—Opinion of United States Court of Appeals

sat down and Fried discussed his horse farm and then. in-

vited them to visit the farm and also to use his boat at

any time and with anybody. Itkin then started describing

- his Dominican Republic ventures, suggesting that Fried

might do some work down there and Fried said that he

thought it was a good idea and. would lil to hear more

about it. Marcus excused himself to make a few phone

calls but as he left said ‘‘ Anything you have to discuss you

can discuss with ay ies Onée Marcus was gone, Fried

said:

I’m a lot older than you are and you are handling your

deals with the City terribly, and if. you will listen to

me you won’t get hurt, and you are handling it very

badly. First. of ‘all, there is no reason to share with

these other guys, what have you got to do with these

type of people?

Itkin replied that he had worked with them on labor prob- —

lems for a long time, but Fried continued:

Well, do you know that I can handle the biggest pay-

_ offs in the. City, ‘there is nobody that can handle it

better than I, and I can handle a quarter of a million

dollars in green at any one, time if the deal ‘is big .

enough.

, ° r

Well, that’s very good, Mr. Fried, but you only paid.

30,000 of a $40,000 contract, and that doesn’t soun

very big, does it?

Fried replied that he had paid 40, not 30. Itkin allowed

_ that the matter was confused but asked if he acknowledged

that he owed $1600. Fried agreed that he did and said he

RH,

| (28a ‘

Appendix A—Opinion of Uwited States Court of Appeals

would pay it when the Coniptroller gave final eee

on some ‘items and only then.\ Itkin was annoyed: ‘‘One

- minute we’re talking about a quarter of a million, the next

* minute you don’t want to pay the. 1600.”’ And he insisted

that Fried would have to finish up this deal before Itkin

could deal with him independently on any others. Fried

said he would pay Motto within the week. Fried also men- - .

tioned that Itkin was fumbling the Consolidated Edison.

contract and that he had the right way of getting into Con-

solidaied Edison.. Itkin insisted they finish Jerome Park

up first. Marcus came back, they exchanged pleasantries

and the meeting broke up.

In early August, Itkin met again with Fried at the Com-

modore. Edward Orlando, another construction contractor,

called Itkin to say that Fried wanted to meet with the two

of them. Fried had been pushing for a cleaning contract

to go to Orlando. Fried had become Orlando’s silent part-

ner on this venture to avoid the fuss that would follow if

it-had been revealed that two such large contracts had gone.

to Fried. At the meeting, they discussed this, and then

- Fried gave Itkin $1500 for a contract previously awarded

to Orlando. Fried again brought up the Consolidated Edi-

son contracts but Itkin ‘insisted: tliat Fried, pay up the

balanee of $1600 on Jerome Park before they settled on

the new matter. Fried promised that he would pay off by

the opening of his breeding farm on August 20th. .

That August 20th, Itkin went up to the opening of the

farm in upstate New York. He saw Fried who told him

that he had paid the balance. Then Fried introduced him to

Carmine De Sapio and suggested that they work together *

29a .

Appendix A—Opinion of United States Court of Appeals

in the future. ‘Marcus, whiothad been invited, did not go tu

the opening.

After the opening, Itkin contacted Motto. He mentioned.

that he had learned in a roundabout fashion that Fried

had paid off. Motto wanted to know how Itkin knew, then

denied receiving the money and said he would go up right

away to get it. He left-but the payment was not received.

During the Summer and Fall of 1967, Marcus, Itkin and

Corallo mete several times at Itkin’s apartment on East

15th. Street to discuss the situation but their efforts were

unavailing. =

One of the investors in Cuntebion had complained to the

New York County District Attorney about Marcus. They

had begun to investigate and had questioned him about

certain large deposits in October, 1966, in his Koenig ac-

count. Marcus appeared before a state Grand Jury on

_ December 8th and perjured himself by denying that he

knew Corallo. Rappaport also was being investigated and >

‘apparently had turned over to the authorities the joint

checkbook he kept for Itkin. One day when Rappaport

came back from a visit to the authorities, he noticed Corallo

and an associate sitting in a car in front of his office. He

then went to Itkin who warned him that Corallo was mad

and that he should leave town and call Itkin later in the

week. Meanwhile, on December 12, Marcus resigned as

Commissioner and went, with Itkin, to the FBI to give his

version of the Jerome Park controversy.

Motto too found ‘he was under investigation. In mid-

November, he was served with a subpoena for the state

Grand Jury. On the return date he was questioned about

a purchase of stock by Itkin. The questioning was by an

30a

Appendix A—Opinion of United States Court of Appeqls

Assistant District Attorney and not before the Grand Jury,

but Motto was told that at a subsequent date he would

be required, to appear and testify before the Grand Jury.

On December 15th, he was served with a second state sub-

poena and on December 17th he was served with the fed-

eral subpoena. The other defendants were also served with

the federal subpoenas on the 17th and told to be present

on the 18th of December. — \

answer to subpoenas, were Fried, Marcus, Motto, Corallo,

Pizzo, Rappaport, Itkin and D’Angelo. ,

This detailed chronological recital of the mieetings, con-

versations, and acts of the various appellants, as the jury

renders it unnecessary, we think, to discuss the sufficiency

of the evidence to sustain the chagge made in the indict-

ment. It is clear beyond any doubt that the jury could

have found the existence of a conspiracy to negotiate a

deal with Fried and S. T. Grand, Inc., to the effect: that,

‘upon the award of this large contract, Fried would pay

Marcus and his assocziates.a kickback of 5 per cent of the

amount paid by the City; that the conspirators reasonably

anticipated the use of interstate telephone communications

between the various conspirators and Motto, who lived in

Greenwich, Connecticut, and in fact on numerous occasions

telephone communications were effected both to and from

Greenwich, Connecticut, by one or another of the partici-

pants in the conspiracy; and that the joint venture con-

tinued during the ensuing several months while the bribe

money was being collected and distributed. Indeed, we do

not see how the jury could find otherwise without repudi-

~ Sle

Appendiz A—Opinion of United States Court of Appeals

ating the testimony of Marcus and Itkin as unworthy ot

belief. Obviously, the jury did not do this, as Judge Wein-

feld instructed the jury to acquit the appellants ‘if you

do not believe Marcus and Itkin,* * * since the structure

of the government’s case in large measure rests upon. their

testimony. ’’ The active participation of each of the appel-

lants in the scheme is also established by an abundance of -

proof of his own words and deeds. |

Other parts of the record will be discussed later-in this

opinion in connection with claims by appellants, or some

one or more of them, that we must dismiss the indictment

or order a new trial because of certain allegedly erroneous

“and prejudicial rulings by the trial judge.

PART II

ALLEGED RRRORS IN THE INSTRUCTIONS TO -

THE JURY AND IN REFUSALS TO ~

CHARGE AS REQUESTED. ’

Proor or Events AFTER THE AWARD OF THE CONTRACT TO

FRIED on NoveMBER 23, 1966 Was Retevant To THE

CRIME CHARGED IN THE INDICTMENT.

Paragraph 2 of the indictment charged the defendants

with using an interstate facility, the telephone, between

Greenwich, Connecticut and New York with intent to:

promote, establish, carry on. and facilitate the promo-

tion, establishment, and carrying on of an unlawful

activity, said unlawful activity being bribery in viola-

tion of Articles 34 and 170, Sections 372, 378 and 1826

‘32a

Appendix A—Opinion: of United States Court of Appeals

of the Penal Law of the State of New York, and there-

after said defendants would perform and attempt to

perform acts to.promote, establish, carry on and facili-

tate the promotion, establishment and carrying on of

said unlawful activity. i

And as one of ‘‘the means’”’ by the conspirators ‘to, ‘carry

out’’ the scheme, Paragraph 3(j) of the indictment alleges:

j. Defendants James L. Marcus, Herbert Itkin,

Antonio Corallo, Daniel J. Motto‘and Charles J. Rap- .

paport did make and receive and cause to be made and

received telephone calls between New York, New York,

and Greenwich, Connecticut, concerning the payments

of money from defendants Henry Fried and S. T.

Grand, Inc. and distribution of the same by defendant

Daniel J. Motto.

As the events schosgnent to November 23,1966 were plainly

the ‘‘carrying out’’ of the conspiracy and as the allegation _

of interstate telephone calls between New York and Green-

wich during the period of the collection and distribution of

_ the bribe money is unampbfguous and specific, we must. con-

clude that appellants were adequately informed that the ~

proofs would include events subsequent to. November 23,

1966.

~ The very cases cited by Corallo in support of his argu-

‘ment that all evidence of. events subsequent to November

1965), the defendants were charged with conspiring to ob-

tain kickbacks for municipal officials in return for orders.

of parking meters. The award of the contracts was made

before the effective date of Section 1952, but the payments

were made afterwards. Defendants argued that the state.

| 33a.

Appendix A—Opinign of United Stages Court af Appeals .

offense of bribery was completed before the effective date

of the statute and hence there was no indictable offense. —

The District Court rejected the argument, the interstate

travel 7 a

was undertaken for the purpose of making the payoff

contemplated as the quid pro quo for the-award of the

accomplishment of the last of its objects, delivery of

the money and the clock. 237 F. Supp. at page 643.

Here also the payments and the use of the interstate phone

to obtain them from Motto were part of the original agree-

ment and certainly facilitated and helped to carry on the

offense of bribery. And the same result, involving the effec-

tive date of the statute, was reached in United States v.

Wechsler, 392 F. 2d 344 (4th Cir. 1968), cert. denied, 392

U.S: 932 (1968), where it was pointed out that while an

indictable offense may have been committed at an early

stage in the conspiracy, the conspiracy itself continues until

its objects are attained, that being the completion or con-

summation of the crime. ;

Corallo argues that New York law demands that we find

the offense of bribery ends with the award of the contract

because that is when the “‘wrong done to the people is com- |

plete by the corruption of the public servant.’’ None of

the cases interpreting Section 1952 support this statement, ..

as “‘Reference to the state law is necessary only to identify

the type of unlawful activity in which the accused was

engaged.’’ McIntosh v. United States, 385 F. 2d 274, 276

(8th Cir. 1967). See also United States v. ‘Nardello, 393

U.S. 286 (1969) ; United States v. Wechsler, supra, 392 F.

2d 344 (4th Cir. 1968) ; cert. denied, 392 U.S. 932 (1968) ;

34a

‘Appendix A—Opinion of United States Court of Appeals

and Kubacki v. Uniied States, supra, 237 ‘FR. Supp. 638 |

(BE. D. Pa. 1965).

Moreover, even if the New York pbiatesitinre law of

bribery were applicable and controlling, it is interesting

to note that the New York cases give no support to Corallo’s

- argument. Thus, in People v. Gibson, 191 N.Y. 227, 231

(1908), it was said:

The bribe by which thie influence is to be exerted may

be paid in the present or in the future and after the

influence has been exerted. The agreement and the

receipt together constitute a single crime, and if the

briber- deems it safer for his purposes to postpone

payment till he has secured-his consideration, the con-

summation of the offense and the running of the stat-

ute will be delayed till that event has occurred.

WHATEVER May Have Been Irx1n’s Contact With THE FBI

NotTHING IN Tus REcorp Supports APPELLANT’S CLAIM

Tuat He PaRTICIPATED IN THE ConsPIRACY AS A GOvERN-

MENT AGENT.

The path of the prosecutor in a eonspiracy ease is full

of snares-and pitfalls. As the conspirators-run for cover

a favorite diversionary tactic is to spread confusion by pur-

suing disgressions suggested by proof having only a tangen-

tial bearing on the case. Just such an opportunity pre-

sented ‘itscif when a reference was rgade: to the fact that

Itkin claimed to have had some contact with the FBI since

asearlyas1962. - «°° 2 «, ;

35a

Appendix A—Opihion of Teited States Cott of Appeals

Itkin’s Participation m This Coneginnny Was shally. on

- His Own. The Record Does Not Sustain Appellants’

Claim that Itkin Participated as a Government Agent

Pretending to Bea er

Whatever Itkin’s contact with the FBI may have a

William Veriker, the FBI agent referred to by Itkim as his

contact with the FBI, was available and counsel for Corallo

_ Said ‘‘We will call the agent. ” But neither he nor any of

the other counsel for appellants did call Veriker or any

other witness on the subject. So far as the subject has

any relevance to the case, the. only. pertinent question is

whether there was any evidentiary basis for appellants’

‘contention that Itkin’s: participation in the conspiracy.

charged in this case was as a Government Agent, in co-_

operation with the FBI, to help appellants to provide proof

of their guilt. On this subject Itkin’s testimony i is explicit

and clear:

The Court: Were you engaged in this Ae your own,

the: Jerome Park Reservoir? That was your own’

activity, was it not?

The Witness: Yes, sir.

‘The Court: You were acting on your own there as

a participant?

The Witness: Yes, I was.

Q. You were doing this in order to turn the informa-

tion over to the Government, is that correct? A. No.

Itkin ever deviated from this position. ie

It(is interesting to observe how the individual partici-

pants in the conspiracy endeavored, éach in his own par-

36a

Appendix A—-Opinion of United States Court of Appeals

ticular fashion, to gain some advantage from Itkin’s con-

tact with the FBI, whatever it may have been. Itkin used

-it‘as a sort of anchOr to windward throughout. Doubtless it

helped him persuade the prosecutor to consent to a sever-

ance as to/him. He claims he revealed all to the FBI in

July, 1967after the last payment had been received from

Fried a

e conspiracy was in effect over. In any event

he pocketéd the money, and it is = of a coincidence,

as pointed out in-summation by counsel for Rappaport, that

Itkin should have waited until the state Grand Jury had

begun its investigation, and the District Attorney of New

York County was hot on his heels, to decide to tell all to

the FBI. : :

If Rappaport had been working in an indirect sort of way”

with Itkin for the purpose of ultimately revealing the Mar-

cus bribery conspiracy to the FBI, he coulde have taken

the witness standin his own defense and told his story.

But he did not. Instead, Rappaport’s counsel conducted a

prolonged cross-examination of Itkin,,called the witness

Reiburn, who testified about the attempted purchase by

- Rappaport in May and July of 1967 of a tape-recorder,

and finally called as a witness a former office associate

who gave some vague testimony to the effect that Rappa-

port explained his neglect of some negligence cases by say-

ing he was working on ‘‘something connected with the

public interest and we are doing the right thing.’’ This -

same lawyer also testified that Itkin came into the office

in December, 1967 and said, with reference to Rappaport,

“<T don’t know where he is. He must be talking to the Dis-

trict Attorney.”? Perhaps this indirect approach on the

bias helped to convince the jury that Rappaport was not

Appendix A—Opinion of United States Court of Appeals

guilty. It is just as likely that the verdict exonerating

Rappaport was based on his youth, on the fact that the

indictment did not charge him with receiving any part of

the bribe monéy, and on the claim of his counsel that he

- had been the innocent dupe of Itkin. We cannot see, as

appellants argue, how any of this testimony substantiates

the clajm that Itkin was only a pretended and not a real

co-conspirator.

Corallo and the other appellants use Itkin’s reference

to the FBI in a variety of ways. Their principal conten-

tion is that Itkin was not a conspirator at all but only a

Government Agent pretending to be a conspirator. From

this premise, apparently urged as matter of law, it is argued

that it was error to describe Itkin as an accomplice and

that it was error not to strike from the record Itkin’s

testimony of the hearsay declarations of Marcus and ap- .

pellants as-co-conspirators. As appellants did not choose

to call.anyone from the FBI as a witness, there is no testi-

mony to support appellants’ assertion that from first to

last Itkin was working with the FBI and under the direc-

tions of the FBI in order to help appellants to commit the

crime charged in the indictment. The testimony of Itkin

on the point, as quoted above, is that whatever else he might

have been doing with the FBI to uncover the machinations

of the underworld, he was in this venture entirely on his

own and acting wholly without the knowledge of the FBI

until he found it to his interest to tell the FBI, after the

last installment of the bribe had been paid.

It will serve no useful purpose to discuss the various

arguments in detail. We find no concessions by the prose-

cutor that support the basic contention that Itkin func-

38a

Appendiz A—Opinion of United States Court of Appeals

tioned not as a conspirator but as a Government Agent

Provocateur. Typical of the remaining bits and scraps is

a quotation from a statement by Itkin when he was engaged

in vilifying the FBI for not furnishing protection for the

children of his first wife. In his statement, as written down

_ by the FBI, Itkin said he ‘‘was pulling out’’ and was ** going

to make a real stink about this whole FBI deal’’ and ‘‘ How

I enticed and entrapped not only Marcus and Rappaport

- but how I enticed several of the others.’’ Itkin said he lied

about Rappaport and as he denied any activity as a Goven-

ment Agent in the formation of and carrying out of ‘the

conspiracy, it is plain the statement has no probative force

with respect to any of the issues in the case except that of

Itkin’s credibility.

Thus we conclude it was not error for the trial judge to

refuse-to exclude or strike out Itkin’s testimony on the

ground that he was in fact a Government Agent and only

a pretended participant in the commission of the crime.

The Request for Instructions on the Subject

of Entrapment Was Properly Denied.

’ It is assigned as error by Fried that the trial judge re--

fused to instruct the jury on the subject of entrapment.

As the record is replete with proof of other kickbacks par-

_ ticipated in by Fried and of a number of other new con-

tracts he had in contemplation, it,is difficult to picture

Fried: in the role of an innocent lamb, without any \pro-

pensity to wrongdoing. And any theory of entrapment

39a

Appendia A—Opinion of United States Court of Appeals

flies in the face of Fried’s testimony of how he lay awake

frightened by Pizzo’s threats of what might happen to Fried

if he did not pay the ‘‘finder’s fee’? demanded by Carl

-D’Angelo and how, at a time when Corallo, Motto and Itkin

were engaged in a dispute as to whether Fried had made

pay-offs aggregating $30,000 or $40,000, Fried answered

Itkin’s question ‘‘What did you pay on that Jerome Reser-

voir’’ by saying ‘‘$40,000.’’ Despite Itkin’s statement about

how he ‘‘enticed Marcus and Rappaport and several of the

others,’’ the idea of entrapment in the context of the evi-

dence in this case is absurd. ;

The Trial Judge Properly Charged That in Prosecutions

in Federal Courts for the Commission of Federal

Crimes the Testimony ofan Accomplice Requires No-

Corroboration to Sustain a Conviction.

As part of his instructions on the subject-of the credibil- _

ity of the witnesses, Judge Weinfeld said:

? On the subject of entrapment Judge Weinfeld ruled:

The Court: That Was a statement which he (Itkin) ex-

plained at the time. The fact of the matter is that the evidence

is Clear beyond any question in the Court’s view that this was

an independent venture of his own, that he participated on his

own, it was not initiated by the government in at respect, and

that it was after the entire transaction was o¥er that he in-

formed the government as to the nature of the transaction.

I find no basis of-any kind to the claim of entrapment. The

evidence is clear on it. The fact he informed.,with respect to

other transactions during this particular transaction does not

lead to entrapment of anybody here.

£08

Appendix A—Opinion of United States Court of Appeals

The law does not prohibit the use, of informers, but

whether you approve of their use is not to enter into

your consideration of this case. In certain types of

crime the government, of necessity, is frequently com-

pelled to rely upon the testimony of accomplices, per-

sons with criminal records, or informers. Otherwise it

would be difficult to detect or prosecute some wrong-

doers, and this is pafticularly true in conspiracy cases.

Often it has no choice in the matter. It must take the

witnesses to the transactions as they are. bere,

There is no requirement in the Federal Court that

‘the testimony of an accomplice, an informer, or one

with a criminal record be ‘corroborated. A conviction

may rest upon the uncorroborated testimony of such a

witness if it is found credible and reliable. However,

the testimony of such a witness should be viewed with

great caution and scrutinized carefully.

The fact that Itkin is’ an informer, as well as the

fact that he and Marcus .are accomplices, that Marcus

has a criminal record and has admitted perjury and

other state crimes, the fact that Itkin has admitted acts

of criminal conduct and other moral derelictions,

should be considered carefully by you as bearing upon

the credibility of each. |

These instructions are claimed to be erroneous in two

respects.* First, it is said that Itkin was not an accomplice

but a Government Agent only pretending to be an accom-

3 The requests to charge are so crudely drawn that they do not

raise the point argued in Corallo’s brief, that “the court refused ,

defendant’s request for an instruction requiring the jury to acquit ,

unless there was corroboration of accomplice testimony.” No/

such request was submitted and Request No. 24 is merely to the

effect that under New York law the testimony: of an accomplice

must be corroborated. We discuss the alleged error, however,

for the guidance of trial judges in future cases, as the question is

likely to arise again.

41a |

Appendiz. A—Opinion of United States Court of Appeals

plice. We reject.this claim for the reasons we have already

discussed. Second, it is the contention of appellants that the

New York State rule requiring corroboration of an ac-

complice should have been applied, because the conspiracy

was alleged to be one to use an interstate facility to carry

on bribery under New York State law. Judge Weinfeld

applied the federal rule and we agree with him.

The broad purposes of this ‘statute are clearly stated

in United States v. Nardello, supra, 393 U.S. 286 (1969).

The reference to “bribery * * * in violation of the laws of

the State in which [it is] committed”’ is to the substantive

offense. To hold that the federal court in which a defen-

dant is tried on a criminal charge of violating Section 1952

must apply the rules of evidence and procedure that are in

force in the State where the crime was committed would -

clearly be giving the statute “an unnaturally narrow read-

ing.’? The conduct of criminal trials in the Courts of the

United States is governed by the Federal Rules. of Crimi-

nal Procedure and by rulings of the federal courts in mat- .

ters of procedure and practice not explicitly or by clear

implication covered by these Rules. Federal law does not

require corroboration of accomplice testimony to sustain

a conviction.eCaminetti v. United States, 242 U.S. 470, 495

(1917) ; McCullough v. United States, 403 F. 2d 1013, 1015

(9th Cir. 1968); United States v. Carrique, 316 F. 2d 186,

187 (2d Cir. 1963) ; United States v. Agueci, 310 F. 2d 817,

833 (2d Cir. 1962), cert. denied, 372°U.S.:959 (1963).

| 42a

- Appendix A—Opinion of United States q of Appeals

. F |

THE REQUESTS TO CHARGE ON THE SuBsEct oF

_ Extortion WERE PROPERLY DENIgp.

Corallo seems to argue that it was Marcus who extorted.

money from Corallo and Fried.’ Of course, there is no

such proof. There is proof by Fried that” D’Angelo and

Pizzo extorted $40,000 from Fried by threats of violence

‘to his person. But neither Rappaport nor any of ap-

pellants other than Fried testified in his own defense.

Marcus and Itkin testified to the bribery conspiracy

and Judge Weinfeld in considerable detail* told the

jury that they could not convict appellants unless they

believed Marcus and Itkin, and found established to their

satisfaction beyond a reasonable doubt that appellants and

each of them had participated in a conspiracy to violate

the New York State bribery laws in a manner which rea-

sonably contemplated the use of interstate telephone calls.

I the face of this record, and in view of the complete

failure of Corallo to make any such fantastic claim during

the progress of the trial, we think there was no occasion

for Judge Weinfeld in his: instructions to mention the sub-

ject of extortion, except in connection with Fried’s testi-

mony concerning the extortion allegedly practiced upon

him by D’Angelo and Pizzo. These instructions were given

and we hold them to be wholly unexceptionable.

At the close of the Government’s case counsel for Corallo,

in support of his motion for a judgment of acquittal, did

claim that what he ealls ‘‘the defense of extortion’’ was

established as matter of law. A fortiori, and for the rea-

sons above stated, this motion was’ properly denied. f

—_—

43a

Appendix A—Opinion of United States Court of oo |

The requests for instructions to. Coe are a canal

lot. They are filled with ambiguities, erroneous statements

of law and argumentative matter. It is pertinent to recall

our admonition, in United States v. Kelly, 349 F.2d 720,

799 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966) : ‘‘it

is not the function of the trial judge to put lengthy, con-

fusing or inaccurate requests for instructions through a

winnowing or sifting process in an endeavor to select what

‘is good and reject what is bad.’’ And the very important

corollary is: if the judge’s charge is comprehensive and

accurate “‘it is not error to refuse to repeat substantially the

same or a different statement of the same principles: of

law in the language submitted by counsel.’? United States

v. Kelly, supra, 349 F. 2d 720, 760 (2d Cir. 1965), cert.

denied, 384 U.S. 947 (1966). 3

In this case Judge Weinfeld’s instructions cover every

phase of the case comprehensive]y, the review of the evi-.

dence produced by both the Government and the defendants

is a model of accuracy and helpfulness to the jury, de-

spite appellants’ ’ claims to the contrary, and we find no a4 .

merit in the contention that there were numerous errors

requiring a reversal of the judgment of conviction as

against any of the appellants.

44a

Appendia A—Opinion of United States Court of Appeals

PART II

AFTER CONSIDERING ‘‘ALL THE EVIDENCE IN

THE CASE” THE JURY WAS WARRANTED IN

FINDING ‘THAT FRIED AND GRAND PARTICI-

PATED IN THE CONSPIRACY WITH REASON-

ABLE ANTICIPATION THAT THE INTERSTATE

TELEPHONE WOULD BE USED BY THE CON-

SPIRATORS OR SOME OF THEM TO EFFECT

THE PURPOSES OF THE CONSPIRACY.

‘Fried claims that there must be direct evidence that

Fried made some of the telephone calls to Greenwich, Con-

necticut, or at least ‘direct proof that he knew that Motto’s

home was in Greenwich. The basic fault in the rea-

soning of Fried and Grand lies in their misinterpretation -

and.misapplication of the requirement that Fried’s partiei- |

pation in the conspiracy must be established by his own

words and deeds ‘and not by the declarations of the other

conspirators. Ever since the writing of Judge Learned

caw opinion in United States v. Dennis, 183 F. 2d 201,

230-1 (2d Cir. 1950), affirmed, 341 U.S. 494 (1951), this _

Court, in a long series of opinions* has sought to lay to a

rest the erroneous supposition that in a joint conspiracy °

/* United States v. Ragland, 375 F.2d 471 (2d Cir. 1967), cert.

denied, 390 U.S. 925 (1968) ; United States v. Padilla, 374 F. 2d

996 (2d Cir. 1967) ; United States v. Nuccio,»373 F. 2d 168 (2d

Cir.), cert. denied, 387 U.S. 906 (1967); United States v.

Stadter, 336 F. 2d 326 (2d Cir. 1964), cert. denied, 380 U.S. 945

(1965) ; United States v. Borelli, 336 F. 2d 376 (2d Cir. 1964),

cert. denied sub nom. Mogavero v. United States, 379 U.S. 960

(1965) ; United States v. Stromberg, 268 F. 2d 256 (2d Cir.),

’ cert. denied sub nom. Lessa v. United States, 361 U.S. 863

. (1959). .

A eae ae

45a

Appendia A—Opinion of United States Court of Appeals

. trial the proof sufficient to establish the participation of a

_ defendant in the conspiracy is the same as the proof sufii-

cient to carry the case to the jury as against that same

defendant. Proof of the participation of a particular de-

fendant in the conspiracy must be by his own words and

acts because such evidence alone will suffice to-establish

the agency relationship required to warrant the trial court’s — °

submission to the jury of all the evidence bearing on the

_ guilt or innocence of a particular defendant, including the

declarations of the various persons shown to be eo-

conspirators, , .

We have already discussed the abundance of; evidence of

Fried’s own words and deeds that was more than sufficient

to warrant a finding that’he was a participant. It will

serve no useful purpose to add to what we have already

said on this subject. We turn then to a consideration of

what the whole record, including the deelarations of co-

conspirators, discloses as Fried’s knowledge of the likeli-

hood of use of the interstate telephone service to and from

Motto’s Greenwich home by Motto and the other co-con-

spirators.

Motto was the key man in’ the conspiracy. It was ‘he ¥

who suggested the kickback idea to Marcus in the first |

' place. It was Motto- who: finally persuaded the others to |

let him do the negotiating with Fried. It was Motto who

arranged for the services of D’Angelo and it was he who

acted as the distributor of the various successive instal-

‘ments of the bribe as they were paid by Fried. That the .

operations of the conspiracy required secrecy and caution | -

is evident from the different diners, luncheonettes, restau-

rants and other places in cars or on street corners, often at

-46a

Appendix A—Opinion of United States Court of Appeals

night, as the prolonged negotiations finally produced agree-

ment on the 5 per cent and the sharés allotted to Marcus,:

Itkin, Motto and Corallo. There were also numerous meet-

ings at various places, attended by varying groups of the

conspirators, as the payments were received and passed

around, always in cash. The use of the telephone was neces-

_ sarily almost constant and pr olonged. The record i is replete

- with proof of a large number of interstate calls to and from ~

_ Motto’s home in Greenwich where Motto maintained a’ tele-

phone with an unlistéd number. Motto. gave this unlisted

‘Greenwich number to Marcus. Itkin, who had worked

_. with:Motto.on other matters at an earlier time, also had ,

Motto’s unlisted ai ee It_is not disputed that Fried also

had ‘‘a private wire.’

* Motto also had known Coralie - previously and’ it was

he who introduced Corallo to Marcus‘and Itkin. All these

friendships had been formed before the Jerome Park

Reservoir .questién arose. As the whole venture revolved

around Motto so it is reasonable to expect that the inter-

state facilities would be used to keep in touch with Motto,

the originator and: the moving spirit behind col whole

" scheme. | : 7

. Moreover, we think the extensive references in the stink

_ to interstate telephone calls that were actually made justify

the inference that the use of interstate telephone calls was

not:a casnal and incidental occurrence but the fulfillment

of an integral part of the conspiratorial consensus. We do

-not see how the jury could have found otherwise, con-

~ sidering the extefsive evidence of the disputes not only

-during the’ period of negotiation, but also over the time,

size and split-up of the pay-offs. It, was necessary to keep

* 47a

Appendix A—Opinion of United States Court of Appeals

in touch with Motto to resolve these disputes, and, given

the familiarity of the. conspirators with Motto, there was

- sufficient evidence to justify the inference that the.con-.

. Spirators agreed to use the interstate telephone» or reason-

ably expected to use it in furtherance of. the ends and pur-

poses of the conspiracy. _

‘Was there knowing participation by Fried in this con-

spiracy? Under. the authorities to be discussed shortly,

this depends upon. the degree of participation by Fried and

the extent to which he fvas intimate and on-familiar ‘terms

with the othér conspirators, especially Motto. The greater

Fried’s involvement in the complicated operations of the

. scheme and: the payment of the various instalments of the

pay-off and the greater his intimacy with Motto, the more |

reasonable is the inference that Fried knew the interstate .

telephone service would be used or actually was used.

In August, 1966, Motto lunched with Marcus and Itkin

and once with Marcus alone. At both these meetings, and

especially at the luncheon with Marcus alone, Motto went

on and on about how well he knew Fried, how they shared

an interest in horses and how ‘‘he had known him for a long

time, he was a man that had been doing contracts for a

In November; 1966, when Marcus decided to award the

contract to Oakhill, Fried called Motto directly to com-

plain of the switch. When Itkin reached’ Motto in Con.

necticut to find the source of the trouble, Motto said: -

It’s no problem, it’s a complete double- cross. Henry -

Fried just called me and told me that he found out that

Oakhill was getting the contract. -

48a

Appendix A—Opinion of United States Court of Appeals

Similarly, there is much other evidence of continuing

direct contacts between Fried and Motto throughout the

record. At the mid-December meeting, for example, where

Corallo, Itkin and Mareus tried to push Motto for the pay-

ment of the/money, Motto responded by relating how ex-

perienced Fried was, how hard he was to contact, and

how he had promised to make a payment of 25 per cent

- onee a rough estimate was made. He said:

Henry has told me I can ask for it and I will have

it in a minute’s notice. ,

Fried himself admits that he, D’Angelo and Motto spent a

day together in late Spring of 1967, driving up to Fried’s

horse farm and talking to one another for the whole day.

This indicates more than a casual or incidenta) friendship.

Soon after that, towards the end of May, when the dis-

pute over the amount remaining reached a high point,

Motto again indicated that he had seen Fried directly.

Motto told Itkin:

You know, you’re screaming for another payment,

Henry Fried just showed me a little book which shows

seven payoffs. Now, what are you talking about? There

is very little money left for us.

And a few weeks later, when Motto again met with Itkin

and also Corallo and Rappaport, he repeated that Fried,

had it down in a little book which he had seen.

In July, 1967, when Fried, Itkin and Marcus met at the

Commodore on’Fried’s invitation, Fried, Itkin testified,

kept saying how badly the deal was being handled and

how there was no reason to work wi) Motto and Corallo.

49a

Appendix A—Opinion of Uniled States Court of Appeals

. a . .

When Itkin had pressed for the balance due before dis-

cussing other deals, Fried replied:

All right, I'll pay Danny Motto the money back within

a week.

In August, 1967, when Itkin, Orlando, and Fried met again

at the Hotel Commodore, Fried again promised to y the

balance due to Motto—but now the final payment is to be

made by the opening of the horse farm on August 20th.

And at the opening, Fried said that he had ‘‘finished up |

with Danny.’’ :

On December 18, 1967, the various conspirators were

summoned to the Federal Grand Jury. On that date Fried

made several statements which showed his knowing associ-

ation with the conspiracy. Marcus saw Fried outside the

Grand Jury room, near the elevators, and Fried said ‘to

him:

They are on a fishing expedition, they haven’t got

anything on us.

Itkin testified also that Fried spoke to him in the anteroom

’ to the Grand J ury and that he had been cautioned by Fried:

They’ll never get anything on us if we all shut up.

And later that day, while they were waiting in line to be

fingerprinted, Marcus testified that Fried said to him: °

They haven’t got anything on us. If we all keep quiet,

we will be all right.

Fried’s counsel misread the purport of Crimmins v.

United States, 123 F. 2d 271 (2d Cir. 1941) and Twitchell

v. United States, 313 F. 2d 425 (9th Cir. 1963), vacated and ”

50a -

Appendix A—Opinion of United States Court of er

remanded sub nom. Rogers .v. United States, 376 S. 188

(1964) (vacated for reconsideration on substantive counts

-onty). These cases distinguish. between cases where it is

held that a peripheral conspirator, having no knowledge

of the operations of the conspiracy as a whole, cannot be

convicted without proof indicating some knowledge on his

part of the interstate features of the venture, and ‘other

cases, such as the one before us now, where the totality of

the proofs, including testimony of declarations and acts of

co-conspirators in furtherance of the illegal scheme, reveal

the appellant as one who was right in the thick of things

as a central member, manipulating and closely supervising

the carrying out of the principal object of the conspiracy.

In this type of case the proofs are held to be sufficient if

the evidence warrants an inference that the, particular

defendant directly agreed to a scheme in which it was known

that the likelihood of use of interstate telephone alls was

great. As aptly said in Twitchell at page 429: ‘‘The degree

of knowledge required of the interstate aspect thus in-

creases as the defendant’s connection with the core agree-

ment becomes more tenuous.’’ Here the proof of Fried’s

‘‘eonnection with the core agreement” is overwhelming.

There is nothing tenuous about if.

Sla

Appendix A—Opinion of United States Court of Appeals

PART IV

- THE CONDUCT OF THE TRIAL

Tue Grand Jury Testimony or Friep anp Motto Was

Property ReEcEIvep aNp Ir Was Nor an Asuse or Dis-

CRETION TO Deny THE Motions For a SEVERANCE.

, I

Some time ago, and consistently over the years, the

Supreme Court has instructed trial judges in no uncertain

terms to give clear and explicit limiting instructions during

the trial of joint criminal conspiracy cases, so that the

jurors would understand those instances where certain |

evidence is received only as against certain specific defen-

dants and with respect to certain specific issues. Blumen-

thal v. United States, 332 U.S. 539, 559-60 (1947). We find

not the slightest indication in Bruton v. United States, 391

U.S. 123 (1968) that the use of such limiting instructions

is to be abolished or curtailed, except in the context of the

overruling of the Court’s former holding in Delli Paoli v.

United States, 352 U.S. 232 (1957), that is to say, in cases

where a co-defendant’s confession implicating another de-

fendant in the commission of the crime, is received with

limiting instructions even though the co-defendant making

the confession does not testify and thus afford the confron-

tation required by the Constitution.

In this case Judge Weinfeld, an able and experienced

trial judge, ‘followed the teaching of Blumenthal to

)

52a

Appendix A—Opinion of United States Court of Appeals

the letter, and, in our judgment, made his limiting in-

structions ‘‘impregnable.’’ A prime example is his treat-

ment of the testimony of Fried and Motto before the Grand

Jury. These two appellants gave no testimony that could

even remotely be considered as involving any of the appel-

lants in any wrongdoing whatever, much less as indicating

- that they or any of them participated in the conspiracy as

charged. What Motto and Fried did before the Grand

Jury was to tell a variety of brazen lies® that served their

purpose to conceal their participation in the course of

events. It is not contended that any of the other appellants

had anything to do with this perjury or that they were in

any manner involved in it.

Accordingly, Judge Weinfeld, both at the time this d

Jury testimony of Fried and Motto was received, and in

his instrictions to the jury at the close of the case, told

the jurors, in the most specific and emphatic manner, that .

this testimony was received only as against Fried and

Motto, respectively, on the issue of the intent of each of

these two, separately, and that the jurors must under no

circumstances consider any part of this testimony in their

determination of the guilt or innocence of the other defen-

dants. This is a far ery from such situations as were

presented in Delli Paoli and Bruton.

We think this Grand Jury testimony was properly re-

ceived and that there was no abuse of discretion by Judge

5 Motto denied having any thing to do witlr the pay-off and Friedo

denied paying money to anyone. Fried said he never heard of

Corallo and Motto testified that, except for chance encounters, he

had known Corallo only*years ago when they grew up in the same '

part of town.

53a

Appendix A—Opinion of United States Court of Appeals

Weinfeld when he denied Corallo’s motion for a severance.

The distinction between this case and the denial of the mo-

. tion for a severance by appellant Shuck in United States

v. Kelly, supra, 349 F. 2d:°720 (2d Cir. 1965), cert denied,

384 U.S. 947 (1966), which we reversed, is’of critical im-

portance. In that case voluminous testimony given before

the SEC by the principal defendants was entirely devoted

to the excoriation of Shuck and a series of accusations

that Shuck was the source of various false and fraudulent

representations made in connection with his sale of the

stock. It took hours to read all this testimony to the jury.

None of it was admissible against Shuck, and we found

it difficult,to see any reason for admitting the testimony

at all, as it accomplished no other purpose than to accuse

Shuck of misconduct. Moreover, the limiting instructions

were of the most perfunctory sort.

Corallo’s motion for a severance, made prior to the trial,

and based ‘upon what it was feared Rappaport would tes-

- tify, fell of its own weight when appaport gave no testi-

mony at all. In any event, the motion in so far as it

referred to Rappaport was wholly lacking in substance.

We shall not again refer to the severance feature of the

case. All of th appellants were properly joined as defen-

dants and nothing occurred during the trial to require a

severance as to ;

It is said by some dr all of the appellants that the call-

ing of these men to testi y before the Grand J ury was mere

pretense and a measuré of harassment, in order to obtain

damaging admissions. If we put ourselves in the position

of the prosecutor at the time the subpoenas were served on

December 17, 1967, returnable at the United States Court-

54a

Appendix A—Opinion of United States Court of Appeals

house on the morning of December 18, it was apparent from

the ex parte Statements of Marcus and Itkin that the prose-

cution was dealing with a long, devious and complicated

-eonspiracy, full of scheming and trickery. There had al-

ready been a certain amount of running to cover by the

various co-conspirators. No investigation would be. ade-

quate and in any sense complete without at least ‘an effort

to glean somé small harvest of information from those

suspected of being involved. The prosecutor had by no

means wholly developed his case. This was not a case of

"pressure upon some single, indigent and perhaps ignorant

person. All of those who were “summoned were sophisti-

‘ eated people, with varying motives to save themselves at

the expense of some of the others, if they could, and pos-

sessed of information of importance to the prosecution.

Several of them were lawyers. Those present. were:

D’Angelo, Rappaport, Fried, Motto, Corallo, Pizzo, Marcus

and Itkin.. re

Under ‘these circumstances we.see no reason for the

curtailing of the inv@jgatory powers of the Grand Jury.

Indeed, the cases’ in Circuit uniformly approve the

procedure that was followed here. United States v. Wolf-—

son, 405 F. 2d 779, 784-85 (2d Cir. 1968) ; United States v.

Capaldo, 402 F. 2d 821, 823-24 (2d Cir. 1968) ; Umited States

v. Fortunato, 402 F. 2d 79, 82 (2d Cir. 1968) ; United Stakes

v. Winter, 348 F. 2d 204 (2d Cir. 1965), cert. denied, 382

U.S. 955 (1965). J

55a

Appendix A—Opinion of United States Court of Appeals

It is claimed that the warning required by Miranda. v.

United States, 384 U.S. 436 (1966), was not given and that

the Fifth and Sixth Amendment rights of Fried and Motto

were not protected. | ?

Im the Grand Jury room, Motto and Fried were sepa-

rately warned that they had a right to remain silent, that

the Grand Jury was investigating the offense of using an

interstate facility to further the state crime of bribery of

a municipal official, that each was the subject of the inves-

tigation, and that he had a right to consult with an-attor-

ney. They-were also asked whether they had attorneys

present. Fried said he did, Motto said he did not. Finally,

they were told whatever they said might be used against

them. We have set forth the full warnings in the margin:® -

These warnings were completely adequate.

® Grand Jury warnings to Daniel Motto:

“*Q. Please state your name. A. Daniel Motto, M-o-t-t-o.

(). And your address. A. 121 Birch Lane, Greenwich, Con

necticut. . ;

Q.*Mr. Motto, let me advise you-that the grand jury before

you is investigating alleged violations of Title 18, United States

Code, Section 371. That section makes it a crime to conspire

to commit any crime against the United States, to commit any

offense against the United States.

There is also a Section 1952. of the same Title which makes

it a crime to use any interstate facility or telephone or to travel,

or the mails, in furtherance of certain ‘particular State offenses.

In this case the State offense that the grand jury is investigat-

ing is the offense of bribery of a local official, namely a munici-

pal official. Do you understand that? A: Yes. ;

Q. And it’s investigating conspiracy concerning this. I do

want to advise you that you have a right to refuse to answer

any questions the grand jury, may ask you today the answers to.

which you feel they tend to incriminate you personally. Do you

understand what I just said? A. ‘Yes. ay

-% of ‘ 56a

Appendix A—Opinion of United States Court of Appeals

; 2 y

- Q. However, should you answer questions, those answers

could be used against you in a court of law or otherwise in the

future. .

[At that point the witness nodded. ] ne

Q. You also have the right to consult with an attorney. You

understand that? A. Yes, sir. ae

Q. Do you have an attorney here today? A. No. 3

. Q. Let me also advise you that you are a subject of the in- ‘

- vestigation of this grand*jury. Do you understand that? A.

Yes, sir. eer i ie

Q. How long have you lived in Greenwich, Connecticut?» .

Grand Jury warnings to Henry Fried: | is

“‘Q. Would you please state your full name?\A. Henry

Fried. .

Q. Where do you reside? A. I have a address at 301

East 66th Street, but I spent most of my tim# up at Somers,

‘New York.

Q. Mr. Fried, are you the president of S. T. Grand & Cone

pany? A. Iam; yes, sir.

Q. What is the nature of the S. T. Grand & Cémpany’s busi- _

ness? A. General Construction, pipe work; we're mostly

watermain contractors, and occasionally, if my engineers see a

job that they may be interested in, we bid on some structural

work also. .

Q. Let me advise you initially, Mr. Fried, that this Grand

Jury is investigating alleged violations of the Federal Criminal

Code, Section 371 and Section 1952, which in effect inyolves

an alleged conspiracy to commit the state crime of bribery of a

local official. And in connection with that, certain—use of cer-|

tain interstate facilities used in connection with that crime; do

you understand that, generally? A. I do, sir.

Q. I want to advise you that you have a-right to consult an

attorney ; do you understand that? A. Yes, sir.

_. Q. Do you have an attorney who’s sitting outside right now ?

A. I have sir.

Q. What is his name?“ A. Mr. Cassese.

(spells) ne ;

Q. 1 want to advise you also that we’re going to propound

questions to you, and that you have a right to refuse to answer m..

any questions which might be asked of you where you feel the re)

answer to the question would tend to incriminate you per-

sonally ; do you ae wa that? A. Yes, sir, I do.

_ In addition, efty answer you do give may be used against °

you in a court of law in the future. You understand that? A. ‘

Yes, sir.

57a a

Appendix A—Opinion of United States Court of Appeals -

o ° ; % t

Motto has filed a Supplemental Appendix containing an

ex parte affidavit by Mr. LaRossa, one of his counsel during

the trial of this case. This affidavit was used in support

of a motion on Motto’s behalf to dismiss the indictment be-

cause, according to LaRossa’s statements ‘‘on information|

and belief”? D’Angelo was Motto’s lawyer when they were

summoned with the others to testify before the Gran

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