# Petition for Writ of Certiorari — D'Ercole v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1106%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 941 ## Text LIBRARY SIPREME COURT. Us & IN 7a © Supreme. Court of the Wuit.d States 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 o ments from . as to Motto’s picking up payments from D’Angelo (517a, ° 7 ' 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 ~~ 8. ~ 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 10 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). (c) itkin testified that he went to the opening of Fried’s 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). 12 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 (\ 13 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 ” 14 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 ie 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 19 ‘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 7 Ri 20 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 21 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 | ‘ , | > ; 22 _ 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 24 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, 2 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. or 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). . = Oo 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). — 27 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., \ 29 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. - © Unrrep Staves or AMERICA, 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 3a 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. 4a % Appendix —- of United States Court i — ee . ° PART II ALLEGED ERRORS IN THE INSTRUCTIONS TO THE JURY AND IN REFUSALS TO CHARGE . AS REQUESTED. A Proor or Events. Arrer THE AWARD oF THE CONTRACT TO Frep on NovemBer 23, 1966 Was ReLevant TO THE Crime CHARGED IN THE INDICTMENT., B ~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 * 1. ° 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. . aA The Request for Instructions on the Subject | of Entrapment Was Properly Denied. 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 8 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 wy \ ; 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. ~ . i 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 , © i a 4 gear ate atone epee el “opm f 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 e 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. d 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 LA 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 x 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. — \ “At the federal courthouse the morning of the 18th, in © 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 “might fairly have.concluded from the evidence in the case, © 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. ’ A 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 23, 1966 should have“been excluded, are to the contrary. © © In Kubacki v. United States, 237 F. Supp. 638 (E. D. Pa. 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 contract * © *. That conspiracy continued until 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. B 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 - S 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, “ : QO Dated: New York, New York Mar 13, 1968 © /s/ Inzer B, Warr United States District Judge e -¥ : 68a Ree APPENDIX C Judgment of United States Court of Appeals pa STATES COURT OF APPEALS FOR THE 9 f Sreconp CircuiT At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse in the City of New York, on the eighth day of: July one thousand mat hundred and sixty-nine. Present: Hon. Harotp R. Meprna, - Hon. Sterry R. WaTeRMAN Hon. Invinc R. KaurMan, Circuit Judges.” | Unrrep States or AMERICA, ep . Plaintiff-Appellee, v. ‘4 ar } Antonio CoraLLo, Henry Friep, Dantet J. Morto, and S. T. Granp, Ivc., Defendants-Appellants, “Herserr Irxin, James L..Marcuvs, . «.. and Caries J. Rappaport, ° : Defendants. el . a 69a ' — Appendix C—Judgment of United States Court of Appeals ' Appeal from the United States District Court for the Southern District of New York. _ This cause’ came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel. On ConsipeRaTIoN Wuenreor, it is now hereby ordered, . adjudged, and decreed that the judgments of said District Court be and rT her eby are affirmed. / A. Danie, Fusaro Clerk 70a 3 Order Devine Petition for Rehearing 32686-9 UNITED STATES COURT OF APPEALS Seconp Circuit a. vv Unitep States or AMERICA, Plaintiff-A ppellee, v. Antonio CoraLto, Henry Friep, Daniet J. Morro and S. T. Granp, Ine., ee “Waneues: Irkm, JaMEs L. Marcus and CuHar.es J. Rappaport, Defendants, -y« (and 3 other cases). ay. v o A petition for a rehearing having been filed herein by counsel for appellants Henry Fried and 8. T. Grand, Inc., Upon consideration thereof, itis - Ordered that said petition be and it hereby i is denied /3/ thiekas R. Mepina /s/ Srepry R. WateRMAN /s/ Irvine R. KaurMan Circuit Judges ~ August 21, 1969 7la \ APPENDIX D Constitutional and Statutory Provisions Involved United States Constitution: Amendment V ‘** * * nor shall he be compelled in any criminal case to. be a witness against himself * * *:”? Amendment VI - “Tn all criminal prosecutions, : the accused shall enjoy the right * * * to have the Assistance of Counsel for his _defence.’? : \ . : 18 U.S.C. § 1952 : “§ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises ° (a) Whoever travels’in interstate or foreign commerce or uses any facility in interstate or foreign commerce, includ- - ing the mail, with intent to— (1) distribute the proceeds of any unlawful activity ; or (2) commit, any crime of violence to further any un- _ lawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishmemt, or carrying on, of any unlawful activity, ~ and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. ot x 72a Appendix D—Constitutional and Statutory Provisions Involved . oo ‘ (b) As used i in this section ‘unlawful activity’ means (1) _any business enterprise involving gambling, liquor on which . the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in” ‘which they are committed or of the United States, or (2). extortion, bribery, or arson in violation.of the laws of the _ State in which committed or of the United States. (c) Investigations of violations under this section involv- - ing liquor or narcotics shall be conducted under the super- . * vision of the Secretary of the Treasury.’’ .¢ 18 U.S.C: § 371 - “§ 371. Conspiracy to commit offense or to defraud United States : ‘‘If two or more persons conspire either to commit any offense against the United States, o F to defraud the United States, or any’ agency thereof in any mannér or for any purpose and one or more of such persons. do any act to ef= fect the object of the conspiracy, eack shall.be fined not. more than $10,000 or imprisoned uot: more than five years, or both. * # #9) ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1106%3A3. Public record. Not legal advice.