Petition for Writ of Certiorari — Carzoli v. United States

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SUPRENE COURT, Us, 7s I - <6 i rT 2 il

“No. E. ROB AT SEAVER, CLERK

Iu the

Supreme Court of the United States

Octoser Term, 1971

DOMINIC CARZOLI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

JULIUS LUCIUS ECHELES

30 North LaSalle Street

Chicago. Illinois 60602

Attorney for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

ASSESS

INDEX

PAGE

RE iiniccsns wssnanionsnicncentianinesaivnntnsnanncsiosininenianmmmnitas 1

Jurisdiction , 2

Questions Presented ee an a?

Constitutional Provisions and Statutes Involved .-...... 2

Statement of the care 3

Reasons for Granting the Writ .... 6

1. Defendant’s Fifth Amendment right to remain

silent and his Sixth Amendment right to have as-

sistance of counsel were violated when the jury

was impermissibly permitted to learn that defen-

dant chose not to answer certain questions of the

agents, and that he insisted upon his right to have

A nice ccitecscercensnsntencsssnicintnncniacistannsaaniinaniisiininiett 6

2. The use of an out-of-court statement made by a

witness as substantive affirmative evidence of the

matters contained therein instead of as impeach-

ing material was violative of the Sixth Amend-

ment’s right of witness confrontation. Such hear-

say evidence could not take the place of in-court

testimonial denials of the matters contained there-

I cicricmndnnssniasshscabhcnniebsanninniunonsescrsnniteconsiinitnnnsabieresineninlendasaaaietie 9

I il cetaccencndscccensnnsneeiieonntnnnalntndeananiensaensenaneniialt 11

Appendix

A Opinion of the Court of Appeals for the

Seventh Circuit, entered July 9, 1971 ........ App. 1

B Order denying Petition for Rehearing ........ App. 15

PAGE

AUTHORITIES CITED

Cases

Bartley v. United States, 319 F.2d 717 (D.C. Cir. — 10

Bridges v. Wixon, 526 U.S. 135 10

Brooks v. United States, 309 F.2d 580 (1962, 10 Cir.) 1011

Bruton v. United States, 391 U.S. 123 (1968) ............ 11

Burgett ~. Texas, 389 U.S. 109 (1967) .. 11

Jenkins v. Delaware, 395 U.S. 213 (Jure 2, 1969) ... 8

Johnson v. New Jersey, 384 U.S. 719 |

Mathis v. United States, 391 U.S. 1 (decided May 6,

1968 ) ipcicesieniacipnieipmnaninasienti 8

Slade v. United States, 267 F.2d 834 (5 Cir. 1959) ...... 10

Tripp v. United States, 295 F.2d 418 (10 Cir., 1961) .... 11

United States v. Dickerson, 413 F.2d 1111 (7th Cir.,

decided July 28, 1969) .............. 7

Valentine v. United States, 272 F.2d 777 (5 Cir. 1959) 10

Constitutional Provisions and Statutes Involved

Fifth Amendment to the United States Constitution .. 6, 7, 8

Sixth Amendment to the United States Constitution 6, 8,9

SEE Se Ee: NDA GR stctanrersnnccencceneniquiliacdianmdilaads 3

3u the

Suprene Court of the United States

Octroser TERM, 1971

No.

DOMINIC CARZOLI,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Petitioner, Dominic Carzoli, prays that a Writ of Cer-

tiorari issue to review the judgment of the United States

Court of Appeals Seventh Circuit entered on July 9, 1971.

Opinions Below

The judgment of conviction and sentence of the United

States District Court for the Northern District of Ilinois

is not officially reported. The opinion of the Court of Ap-

peals for the Seventh Circuit, entered on July 9, 1971, has

not yet been officially reported. It is attached hereto as

Appendix ‘‘A’’.

2

Jurisdiction

The judgment of the Court of Appeals affirming the

judgment of conviction and sentence of the District Court

was entered on July 9, 1971. A Petition for Rehearing

was timely filed and denied on September 2, 1971. (Appen-

dix ‘‘B’’). The jurisdiction of this court is invoked under

and pursuant to 28 U.S.C. 1254(1).

Questions Presented

1. As Miranda v. Arizona, 384 U.S. 436 (1966) has been

held applicable to Internal Revenue criminal tax investi-

gations, Mathis v. United States, 391 U.S. 1 (1968), is the

date of applicability of the holding the time of the inter-

rogation or the time when trial commences?

2. Can the decision by the Seventh Circuit in United

States v. Dickerson, 413 F.2d 1111 (July 28, 1969), overrule

this court’s holding in Johnson v. United States, 384 U.S.

719 that the Miranda application shoule apply to cases in

which the trial began after the date of the Miranda deci-

sion?

3. Was the government’s use of an extra-judicial af-

fidavit of a witness as substantial evidence, impermissible

use of hearsay, contrary to notions of our system of fair

trial?

Constitutional Provisions and Statutes Involved

The Fifth Amendment to the Constitution provides, in

pertinent part: ‘‘No person . . shall be compelled in any

criminal case to be a witness agaiust himself .. .’’

The Sixth Amendment provides, in pertinent part: ‘‘In

_all criminal prosecutions, the accused shall enjoy the right

... to have the Assistance of Counsel for his defense.”’

3

Sec. 1510, Title 18 U.S. Code (effective November 3,

1967), makes it a crime to endeavor by means of ‘‘intimida-

tion or force or threats thereof to obstruct, delay or pre-

vent the communication of information relating to a vio-

lation of any criminal statute of the United States by any

person to a criminal investigator.’’

Statement of the case

Internal Revenue tax agents, Thomas Knitter and Kevin

Nestor, were investigating the defendant Carzoli’s possible

criminal violations of the Internal Revenue Code (A. 2).!

Knitter also was assigned to investigate the possible tax

violations of one Vera Sanders. He first talked to Carzoli

on July 12, 1968, relative to his tax liabilities and learned

that Carzoli’s income derived from his operation of a taxi

cab and that Carzoli did not receive income from a clean-

ing store, the Gildom Cleaners in Chicago. He talked with

defendant again on December 30, 1968, and again on Jan-

uary 9, 1969.

Knitter first talked to a Betty Smith at the Gildom

Cleaners and had given her a message for Vera Sanders.

The agents then returned to the store on January 22, 1969,

and asked Mrs. Smith whether she gave the message to

Sanders and Smith replied she had. Carzoli was present

when Knitter asked Mrs. Smith if she knew where Sanders

lived. As the agent put it, ‘‘Dominice Carzoli raised his

voice aud he halfway turned to her and said, ‘Betty, shut

up... you don’t tell them anything, or you will end up in

the trunk of a car’’’. (A. 6). Agent Knitter told her she

could be cailed as a witness, whereupon Carzoli told her,

*“A” vefers to the printed Appendix as filed in the Court of Ap-

peals.

+

‘*You had better not remember anything . . . you don’t

know anything about Sanders or the business, you only

work in the cleaners, you don’t tell the agents anything

else.’’ (A. 6-7).

Betty Smith took this matter as a joke (A. 24); but

defense counsel was not permitted to get an answer from

the agent when he cross-examined Knitter, ‘‘Did Betty

Smith ever tell you that the words you heard spoken to

her by Carzoli was a joke?t’’ (A. 10). Mrs. Smith had

given an affidavit to the agents after much urging on the

agents’ part. (Tr. 33)? She testified in the trial on behalf

of the defendant that the matters contained in her affidavit

were false, and that she had only read the affidavit partially

before she signed it. (A. 26-28}.

When Knitter testified as to his interrogation of the de-

fendant with respect to his tax information, defendant ob-

jected and requested a hearing outside the presence of the

jury to determine whether defendant was properly warned.

The court overruled the objection and Knitter testified in

the presence of the jury that Carzoli had asked whether

he needed a lawyer (A. 6). Knitter adinitted on cross-

examination that he continued to interrogate even after

Carzoli asked if he needed a lawyer. Agent Nestor testi-

fied, over objections (‘‘unless there is a proper showing’’)

that on January 22, 1969, Knitter had interrogated Carzoli

anc, asked the whereabouts of Sanders. Carzoli declined to

give them any information about Sanders. (A. 12). Knitter

testified, over objectiqns, that when Carzoli asked if he

needed a lawyer, Knitter stated, ‘‘If there is nothing to

hide, or if there is no guilt, it is up to you, more or less,

if you want an attorney or not.’’ (A. 13-14).

2“Tr.” refers to the original transcript of evidence at trial and filed

with the Court of Appeals.

5

Only when the government rested its case, and after the

court denied defendant’s motion for a verdict of acquittal

(A. 15-16), did the court grant the defendant a voir dire

hearing to determine the voluntariness of answers given

to the agents on January 22, 1969. Defendant testified,

without contradiction at that hearing, that when Knitter

asked for his books and tax records defendant said, ‘‘Be-

fore I get my books, do I need an attorney?’’ Knitter

told Lim that if the books were alright, he didn’t need a

lawyer. (A. 16). He then told Knitter ‘‘Before I turn my

books over to you, I would like to speak to a lawyer; get

hold of a lawyer.’’ (A. 16). Knitter asked him further

questions about where he thought Vera Sanders was.

As the government called no agents in rebuttal, the de-

fense moved to strike all of the testimony given by Knitter

and Nestor regarding the January 22, 1969, interroga-

tions, at least up to the point of the so-called threat, for the

reason that defendant’s rights under the Constitution, in

the light of Miranda, were violated. (A. 18). The court

ruled that Miranda was applicable only in an in-custody

situation and denied defendant’s motions.

Reasons for Granting the Writ

1,

Defendant’s Fifth Amendment right to remain silent and

his Sixth Amendment right to have assistance of counsel

were violated when the jury was impermissibly permitted

to learn that defendant chose not to answer certain ques-

tions of the agents, and that he insisted upon his right

to have an attorney.

In addition to seeking the removal from the jury’s con-

sideration of the pronouncement by agent Knitter that

criminal stigma attaches to one who seeks an attorney, de-

fendant sought to foreclose the jury from even learning

that he declined to make certain answers to the agent’s

interrogation. Defendant indeed was under criminal in-

vestigation and was the focus of the revenue agents’ in-

quiries. (A. 2, 4, 12).

In nowise was the jury aided in their fact finding process

as to whether or not a threat was made to Mrs. Smith by

learning, over objections, that Carzoli requested an at-

torney. That was his Sixth Amendment right. And the

unique theory as testified to by Nestor that ‘‘If there is

nothing to hide, or if there is no guilt, it is up to you, more

or less, if you want an attorney or not’’ (A. 13-14), has

nowhere any sanction in law and is violative of the ex-

pressed pronouncements in Miranda v. Arizona, 384 US.

436 (1966).

And the jury was also improperly permitted to learn that

when Carzoli had asked agent Knitter if he needed a law-

yer, (A. 6), that Knitter ‘‘told him that if he was, in fact,

7

innocent, and he had nothing to hide, there was no reason

why he would need a lawyer.’’ (A. 7-8).

None of these erroneous interpretations of the Consti-

tutional rights of the defendant should have been permitted

to be given the jury. And to compound the violation, de-

fense counsel was not even permitted to take the sting out

of the implications of guilt because Carzoli requested a

lawyer. Defense counsel inquired of agent Nestor whether

innocent persons also require the services of a lawyer in

dealing with the Internal Revenue Department. The fol-

lowing questions were asked, to which government objec-

tions on the grounds of irrelevancy were sustained (A. 14).

**Do you mean that it is the theory of you agents that only

a person who is investigated on income tax returns, only

after that person is guilty of an offense, does he need a

lawyer?’’ And, ‘‘Isn’t it true that many people whose tax

returns you investigate have lawyers?’’ (A. 14).

If it were irrelevant, as the government stated, to asked

those questions, what possible relevancy to the case is the

impermissible evidence admitted that if defendant were, in

fact, innocent and had nothing to hide, he would have no

need for a lawyer?

Aside from the obvious infringements of defendant’s

constitutional rights with respect to his requests for a

lawyer, all testimony of defendant’s refusal to produce his

books or to say anything about Sanders should have been

withheld from the jury. Both the Fifth Amendment and

the holding in Miranda required such a ruling by the court.

The Court of Appeals’ evasion of these claimed errors was

by way of relying on United States v. Dickerson, 413 F.2d

1111 (7th Cir., decided July 28, 1969) which held that crim-

inal tax investigations are subject to the application of the

Miranda holding even if the citizen is not in custody, but

8

that the holding should apply only to interrogations made

subsequent to July 28, 1969. But the trial in this case com-

menced March 19, 1970°; and in Johnson v. New Jersey,

384 U.S. 719, this court held that Miranda was te be ap-

piied to cases in which the trial began after the date of

the Miranda decision as did the instant one.*

Certiorari sheuld be granted, if for no other reason,

to determine the time when the Miranda decision should be

given prospective application—the time of interrogation

or the time of commencement of trial. Dickerson finds sup-

port in Jenkins v. Delaware, 395 U.S. 213 (June 2, 1969).

But that case merely held that Miranda is not applicable to

retrials, if the earlier trial took place before the time of

the Miranda pronouncement.

In any event, Certiorari should be granted to determine

that trial courts must not allow juries to learn that sus-

pects avail themselves of their Fifth Amendment right not

to answer questions and of their Sixth Amendment right

to demand a lawyer.

And will this court sanction the pronouncement by gov-

ernment agents to a jury that the request for a lawyer

by a suspect he was interrogating was tantamount to guilt;

for, according to the agent, ‘‘if he was, in fact, innocent

and he had nothing to hide, there was no reason why he

would need a lawyer’’ (A. 7-8)?

3 See original Transcript of Evidence as filed in the Court of Ap-

peals for the Seventh Circuit, #18562.

* Cf. Mathis v. United States, 391 U.S. 1 (decided May 6, 1968)

holding Miranda to be applicable to tax investigations on persons

in custody (although in custody for reasons other than the tax in-

quiries. The conviction there was reversed where answers were

given to the tax agents in 1964 and 1965, before Miranda, but the

trial took place after.

2.

The use of an out-of-court statement made by a witness

as substantive affirmative evidence of the matters con-

tained therein instead of as impeaching material was vio-

lative of the Sixth Amendment’s right of witness confron-

tation. Such hearsay evidence could not take the place

of in-court testimonial denials of the matters contained

therein.

The crucial issue in the instant case was whether the

statements of Carzoli were made in jest and whether they

were considered by Betty Smith as a threat and induced

fear in her. The trial court instructed the jury as follows:

‘*You are hereby instructed that if the words spoken

by defendant were made in jest and were not con-

sidered by Betty Smith as having induced fear in her

or as having intimidated or threatened her, then you

should find the defendant not guilty.’’ (Tr. 230-231).

On this issue the only direct evidence was the testimony

of Betty Smith that she did not conceive defendant’s words

as a threat and that she was not frightened. (A. 23).

Her testimony in this regard was substantiated by that of

her son, Eugene Smith. (A. 19-20). The prosecution at-

tempted to impeach her with a prior out-of-court state-

ment. Although such prior statement can be considered

only as impeaching, the prosecutor improperly caused the

jury to believe that such prior statement could be con-

sidered as direct evidence that she feared the defendant.

The prosecutor argued:

‘*By the way, the threat worked; the agents didn’t get

anymore information from Betty Smith about Carzoli,

Gildom Cleaners, or anything else. That was the end

of it. That was the end of it for the Internal Revenue

Service.

10

In her affidavit — which she was not hounded to

sign — which nobody testified was false, she said that

a couple of the paragraphs, she told the Agents that

a couple oi the beginning paragraphs, which mean

nothing at all to this case, nothing, may have been

out of context, and in that affidavit she testified that

she — ’’ (Tr. 218)

The court did not sustain counsel’s objections that the

affidavit was not evidence. The jury must therefore have

been left with the incorrect belief that this affidavit and

other testimony containing her out of court statement could

be treated as having substantive or independent testi-

monial value.

Evidence of prior inconsistent statements by a witness

is admissible to impeach his credibility. The admission of

such evidence is premised on the fact that its exclusion

would deprive the part~ eeeking to use it of his opportunity

to exhibit the trut. u.1. in leaving him ‘the prey of a

hostile witness. In criminal cases, these extrajudicial state-

ments are often highly incriminating and are usually made

outside the presence of the defendant. To give these state-

ments substantive value would allow an accused to be

convicted on extrajudicial statements of witnesses — a

practice that runs counter to the notions of fairness on

which our legal system is founded. Bridges v. Wixon, 326

U.S. 135. Permitting the jury to believe that the substance

of prior contradictory statements can be treated as having

substantive or independent testimonial value, as occurred

by the court’s failure to sustain defendant’s objections, re-

sulted in reversible error. Bartley v. United States. 319

F.2d 717 (D.C. Cir. 1963); Valentine v. United States, 272

F.2d 777 (5 Cir. 1959); Slade v. United States, 267 F.2d

834 (5 Cir. 1959); Brooks v. United States, 309 F.2d 580

11

(1962, 10 Cir.) ; Tripp v. United States, 295 F.2d 418 (10

Cir., 1961).

Although courts have permitted such impeachment, they

have done so upon the Lelief that the jury would be capable

of following a limiting instruction. However, ‘‘The legal

distinction between using a statement to destroy credi-

bility and to establish the stated fact ‘“‘. . . is a hard

one for the lay mind to draw.’’ Slade, supra, at 839. And

courts have recently lost faith in the ability of juries

to follow such limiting instructions. Bruton v. United

States, 391 U.S. 123 (1968) ; Burgett v. Texas, 389 U.S. 109

(1967).

Hence, here, where the prosecutor argued the statement

as direct evidence, and where the court failed to sustain

defendant’s objections thereby causing the jury to believe

that the prior statements could be considered direct evi-

dence of guilt, the instructions were insufficient to remove

the prejudice.

Conclusion

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

Jutivs Lucius EcHE.Es

Attorney for Petitioner

a a Ee ee,

—

APPENDIX “A”

in the

United States Court of Appeals

Sor the Seventh Circuit

SEPTEMBER TERM, 1970 Apri Session, 1971

Number 18562

Unitep States or AMERICA,

Plaintiff -A ppellee,

v.

Dominic Cakzo_t,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Jury 9, 1971

Before Kwnocu, Senior Circuit Judge, and CumMMINGs

and Pe., Circuit Judges.

Knocu, Senior Circuit Judge. Dominic Carzoli, defen-

dant-appellant, was convicted in a jury trial on a charge

of wilfully endeavoring to obstruct communication of

information by intimidation and threats in violation of

Title 18, U.S.C. §1510. He was sentenced to serve three

years. This appeal followed. Although there was virtual

App. 2

agreement on the actual words spoken by the defendant,

there were some sharp conflicts in the testimony at the

trial presenting factual issues for determination by the

jury. |

The defendant asserts that the evidence was insufficient

_ to prove the allegations of the indictment because he had

no intent to utter a threat and his words were not con-

sidered a threat by the witness to whom they were ad-

dressed, and, further, that there was no proof the alleged

threats prevented communication of information relative

to a criminal offense. He also contends he was erroneously

limited in his right to cross-examine, that his Fifth Amend-

ment right to remain silent was ihe subject of unfair gov-

ernment comment, and that he was denied Miranda warn-

ings. He alleges other errors at his trial inciuded improp-

er argument to the jury and misuse of an impeaching

affidavit.

\ There was evidence from which the jury could have

decided that Thomas J. Knitter, then a special agent

with the Internal Revenue Service, was engaged in in-

vestigation of a possible criminal violation of the Internal

Revenue Laws by defend2zut or one Vera Sanders. He

was particularly trying to ascertain the person responsible

for reporting the income of a concern called Gildom Clean-

ers in Chicago, Illinois.

Agent Knitter and Agent Thomas Isitoro (also of the

Internal Revenue Service) had spoken to defendant at

his home in July 1968, (warning him at that time of his

constitutional rights) with respect to his tax liability for

1964-1966. Defendant had denied receiving income from

Gildom Cleaners. Agent Knitter had spoken to defendant

on subsequent eccasions about his income.

\

App. 3

Agent Knitter had met Betty Smith, who was an em-

ployee of Gildom Cleaners, and, on January 22, 1969,

in the company of Special Agent Kevin Nestor he had a

conversation with Mrs. Smith and defendant at Gildom

Cleaners. In answer to Agent Knitter’s inquiry Mrs.

Smith had said she left Agent Knitter’s message for

Vera Sanders, later found it gone and assumed it had

been received. Agent Knitter then asked defendant if he

knew where Vera Sanders was living and defendant

said he did, but would not tell it to the Agents. When

Mrs. Smith was asked the same question her answer

was interrupted by defendant who raised his voice and

said: ‘‘Betty, shut up. Don’t tell them anything or you

will end up in the trunk of a car.’”” When Agent Knitter

told Mrs. Smith she could be called as a witness, defendant

said: ‘‘You had better not remember anything. You don’t

know anything about Sanders or the business. You only

work at the cleaners. Don’t tell the Agents anything else.”’

Agent Knitter said Mrs. Smith’s face became flushed,

she stepped: back, looked from one to the other of the

three men and said ‘‘I know that I can end up in the

trunk of a car for giving information to the government.”

At the trial, Mrs. Smith testified for the defense that

she understood defendant’s remarks to be humorously

intended, that she had asked ‘‘Where are you going to

find a trunk big enough?’’ and everybody had laughed.

Mrs. Smith’s 18-year old son, Eugene, also testified

that he was present at the time and that his mother’s

reaction to defendant’s words were first amazement and

then laughter. The two agents testified that they did not

see Eugene Smith in the Gildom Cleaners on the date

in question although Agent’ Knitter had gone through

the premises to look at the back door. Agent Knitter

described the interior of the premises in which the incident

oe

\.

App. 4

took place as approximately 15 by 30 feet. He said that

if the son had been where he testified he was standing,

he would have been directly across the counter from

Agent Knitter. Mrs. Smith said that when she later

responded to a subpoena at the Federal Building she told

Assistant U. S. Attorney Sheldon Davidson, in the presence

of Agents Knitter and Nestor, that the incident at the

Cleaners on January 22, 1969, was all a joke.

On cross-examination she was asked about an affidavit

she signed in May 1969 in which she said her stomach

had turned over and her heart was pounding after hearing

the defendant’s words. She was also asked whether she

had not said in the affidavit that she thought it was

stupid for him to say this before the agents, that he must

mean it as a joke and she made some light remark about

getting a trunk large enough, but she had also said in her

affidavit that she left the store right after the agents

did and never returned, that she was frightened then

and still, that she refused to answer questions and would

not testify in Court because of defendant’s statement,

thet she feared for her own life and the lives of her

family. At the trial Mrs. Smith said that although she had

signed the affidavit she had not read all of it and that

it was not all correct, that she had not meant that she

was really frightened because of defendant’s statement.

She also testified on cross-examination that when she had

testified to the Grand Jury on January 30, 1969, she had

given only her name, answering ‘‘I don’t remember’’ to

all other questions, and on February 6, 1969, had taken

the Fifth Amendment in response to all questions. We

do not agree with defendant that it was necessary to show

what questions were put to Mrs. Smith to negative the

possibility that she refused to answer not out of fear

but to aveid meriminating herself. When she came out

App. 5

of the Grand Jury room on January 30. 1969 she had

said to Agent Knitter, ‘‘I always thought that I was

patriotic. .. . Now I am called before a Federal Grand

Jury and I can’t help. . . . I just can’t give him the

answers.”’

As indicated, Agents Knitter and Nestor were present

at the conversation between Mrs. Smith and Mr. Davidson.

They testified to her statements that she had been

frightened and was still frightened. They testified that

her answers to Mrs. Davidson’s questions were incorpo-

rated in the affidavit she later signed. Agent Nestor testified

that Mrs. Smith read the affidavit in his presence, that

she said she did not want to sign it because there were

certain items which she did not believe were true or were

out of context. He said he instructed her to go ahead

and change anyihing she wanted to. Mrs. Smith had also

testified that she told the Agents there were certain things

in the statement she did not agree with and she was told

she could change any of the wording, but she had signed

it without making any changes.

Special Agent Robert R. Fuesel testified that when

Mrs. Smith signed the affidavit in his presence and Agent

Nestor’s, she told him she was fearful for her life and

her husband’s and children’s lives and did not want to

become involved, that she had attempted to move avay

from her present location but was unable to get an apart-

ment. Mrs. Smith denied making any such statements.

The government argues persuasively that whether or

not a victim: reels threatened is immaterial to a prosecution

unacr this statute (Title 18, U.S.C. $1510) which is vio-

lated by a wilful endeavor, by means of intimidation

or force, or threats thereof, to obstruct the communication

of information (relating to a violation of any criminal

statute of the United States) by any person to a criminal

App. 6

investigator. The Legislative History (U. S. Code Con-

gressional and Administrative News, 90th Congress, First

Session, 1967, p 1760 et seq.) supports the government

view. The purpose of this statute is stated as:

**. . . to plug a loophole in the protection the Govern-

ment can now provide to its own witnesses and in-

formants. This loophole results from the fact that

presently it is not a Federal crime io harass, intimi-

date, or assault a witness who may communicate in-

formation to Federal investigators prior to a case

reaching the court.

> > . >

‘*This frustration of criminal investigations and prose-

eutions should no longer be tolerated, but since there

is no statute which presently protects witnesses dur-

ing the investigative stage, there is need for the

enactment of this-legislation.’’

with respect to the meaning cf the word ‘‘endeavor’’ we

find :

‘This act also uses the word ‘endeavor.’ Here

‘endeavor’ means any effort or essay to accomplish

the evil purpose that this act is designed to prevert.

The use of the word ‘endeavor’ avoids the technical

difficulties which would be involved by the use of the

word ‘attempt.’ Thus, where a person’s acts have

not progressed far enough to amount to an attempt,

under the act such acts would come within the scope

of the word ‘endeavor’ and thus be subject to punish-

ment.”’

This sepports the argument that success in the endeavor

is not an «lement of the offense.

In the sole case which we have come across construing

this statute, United States v. Kozak, 3 Cir., 1971, 438 F.

2d 1062, actu] force was charged in the second count

of a two-count indictment. The two defendants were

LL Sees

App. 7

charged in the first count with wilful endeavor to use

force to delay and prevent communication of infcrmation.

One of the defendants was found guilty on tke first count

and not guilty on the second. He argued that the verdict

could not stand for inconsistency. The Third Circuit held

(p. 1068) that the endeavor and actual use of force were

separable, citing Knight v. United States, 5 Cir., 1962,

310 F.2d 305, 307, for the proposition that success or

failure of the endeavor was immaterial. Knight dealt

with Title 18, U.S.C. §1503, endeavoring to influence, in-

timidate, or impede a witness in a United States Court,

before a United States Commissioner or committing Magis-

trate.

As the statute under which defe t was convicted

Title 18 U.S.C. §1510 is comparafecly new (November

3, 1967), the defendant draws analogies from other stat-

utes involving threats. For example, he cites Marshall

v. United States, 9 Cir., 1966, 355 F.2d 999, 1010, which

involved conspiracy to travel in interstate commerce with

intent to carry on and facilitate extortion. The Court

there referred to its decision in Carbo v. United States,

1963, 314 F.2d 718, 740-741, cert. den. 377 U.S. 953, where

it was said that to prove a substantive act of extortion

it was essential to show generation of fear in the victim

and to prove a substantive act of attempted extortion it

was hecessary to prove an attempt to instill fear. The

court found no error in admission of evidence as to the

victim’s ‘‘subjective emotional feelings.”

United States v. Kennedy, 2 Cir., 1961, 291 F.2d 457.

458, involved the Hobbs Act. Defendants were charged

with obstructing interstate commerce by extortion. In that

ease, the Court said that proof of the state of mind of

the victim was relevant to a prosecution for extortion

App. 8

and might be evidenced by the victim’s own testimony

at the trial.

Defendant argues that whether the words said were

or were not uttered in jest without criminal intent can

best be determined by the recipient of the alleged threat.

Hnce he sees it most important to show Mrs. Smith’s

state of mind and points to what she said about her reac-

tion as the best evidence of that fact. Of course, her

reactions in so far as they were visible were also described

by the agent witnesses. The jury saw and heard Mrs.

Smith and made its own determination of her credibility.

In this Court, the government has stressed its view

that proof of the success of the threat is not an element

of the offense, and that the government was improperly

obliged to overprove its case. At the trial the jury was

instructed at defendant’s request and without objection:

‘*You are hereby instructed that if the words spoken

by the Defendant were made in jest and were not

considered by Betty Smith as having induced fear

in her or as having intimidated or threatened her,

then you should find the Defendant not guilty.

‘*Before you may find the Defendant guilty, you must

find that the words uttered by him to Betty Smith

on January 22, 1969, did actually induce fear on her

part and that such words uttered by Defendant were

considered by her to be intimidation and a threat of

force.”’

In oral argument, government counsel attributed the

absence of objection to the fact that this was one of the

first cases under this new statute.

The jury apparent'v decided that the words of: the

defendant were not uttered in jest, did induce fear and

were considered by Mrs. Smith to be intimidation and a

threat of force. There was ample evidence to support

App. 9

that conclusion in the testimony of the agents who described

Mrs. Smith’s appearance and her actions over a period

of time during which they had several occasions to ob-

serve her. The jurors were not obliged to believe Mrs.

’ Smith’s own testimony at the trial.

In the course of the trial defendant several times asked

for voir dire hearing to ascertain whether he had been

properly warned of his rights pursuant to the holding

in Miranda v. State of Arizona, 1966, 384 U.S. 436. The

Trial Judge did hold such a hearing at the conclusion of

the government’s case in chief and decided adversely to

defendant. At that time defendant said he had been

warned of his rights earlier on July 12, 1968 but not on

January 22, 1969, contrary to the testimony of Agents

Knitter and Nestor who had both said he was again told

of his rights on January 22, 1969. We find no error in the

Trial Judge’s ruling.

In addition the government reminds us that United

States v. Dickerson, 7 Cir., 1969, 413 F.2d 1111, holding

Miranda applicable to criminal investigation of Internal

Revenue violations, was made effective prospectively only.

That decision was handed down July 28, 1969. The incident

with which we are concerned occurred on January 22,

1969, and did not involve a custodial interrogation. Defen-

dant was not being questioned in an Internal Revenue

Office. His freedom was in no way limited.

Defendant’s refusal to answer a question, as reported

in the testimony of the agents, did not involve assertion

of a Fifth Amendment privilege against self-incrimination.

He was not discussing his own affairs. He had just said

he knew where Vera Sanders lived. He then refused to

tell the agents where. It was only afterwards that Mrs.

Smith was asked that question.

App. 10

An element of the offense charged is an actual, existing

investigation of possible violation of a criminal statute.

It was necessary for the government to show the circum-

stances under which communication of information was

sought to be obstructed. The jurors, however, were in-

structed that the fact of defendant’s own involvement

in an investigation was not to be considered in deter-

mining whether he was or was not guilty of endeavoring

to obstruct communication of information.

The government further notes that defendant’s objec-

tions, at the time, to the testimony in which his refusal

to answer a question was mentioned concerned the issue

oi warnings alone and argued that he is now precluded

from raising this new point on appeal. The government

cites a long line of authority for this view, with which

we have no quarrel. Nevertheless we have considered

the defendant’s argument but find no such impropriety

as he sees in the testimony about his refusal to tell the

agents where Vera Sanders resides.

In the course of cross-examination of agent Knitter,

defense counsel sought to elicit evidence of occurrences

after January 22, 1969, apparently to bring out in advance

evidence to support the defense which defendant would

later develop when presenting his own evidence that

Mrs. Smith had subsequently said she regarded defen-

dant’s statement as a joke. The Trial Judge sustained

objection on the ground counsel was proceeding beyond

the scope of the direct examination, pointing out that

the witness would be available for later call as a witness

for the defense. The Trial Judge reminded the defendant

of that ruling when he sustained similar objections to

later cross-examination of Agent Nestor. Defendant did

net, however, elect to call these agents as his witnesses.

Defendant states he also wanted to inquire whether fur-

App. 11

ther questions had been put to Mrs. Smith at a later date

as bearing on the issue of preventing communication.

This evidence could also have been elicited as part of

def-ndant’s case by calling the witness later, as it went

beyond the bounds of direct examination.

It is the province of the Trial Judge to exercise a wise

discretion in determining whether, considering the direct

examination, it is proper to allow or exclude specific ques-

tions on cross-examination. United States v. K eig, 7 Cir.,

1964, 334 F.2d 823, 829, und cases there cited.

The defendant raises no objection to the basic principle

but considers that the Trial Judge too narrowly construed

the scope of the direct examination. We do not agree.

We see no abuse of discretion.

Agent Nestor testified that Agent Knitter had told

defendant, who asked whether he needed an attorney,

that if there were nothing to hide and no guilt, it was

up to defendant whether he wanted an attorney or not.

Defendant sees serious error in sustaining objections

on the ground of irrelevance to defense counsel’s questions

whether Internal Revenue Agents thought only the guilty

needed lawyers and whether many persons whose tax

returns were under investigation did not in fact have

lawyers. Defendant contends he was seeking to take the

‘‘sting’’ out of what he views as an implication that defen-

dant was shown to be guilty because he asked about

retaining counsel. Like the Trial Judge we see no proba-

tive value in these questions.

It does not seem to us from a careful reading of the

government’s argument to the jury that the prosecutor,

as defendant charges, exceeded the limits of the right to

argue the f:cts and inferences properly drawn from the

App. 12

testimony. United States v. Cotter, 1 Cir., 1970, 425 F.2d

450, 452; Wakaksan v. United States, 8 Cir., 1966, 367

F.2d 639, 646, cert. den. 386 U.S. 994.

The Court denied a motion for mistrial made after

the prosecutor said he was sorry for Mrs. Smith, sorry

‘*she had to come before this Court and commit perjury,

which she did do.’’ The Trial Judge admonished govern-

ment counse! not to use the word ‘‘perjury’’. Counsel then

said Mrs. Smith had not told the jury the truth. In Harris

v. Umted States, D.C. Cir., 1968, 402 F.2d 656 on which

defendant relies, the Court of Appeals held that it was

permissible argument for the prosecution to attack the

appellant’s version of the events as an incredible tale.

The Court, however, criticized as of questionable propriety

despite absence of objection, counsel’s further comments

(although the Court did not view them as having had

significant impact on the case which was affirmed, no

‘‘plain error’’ being found) because of frequent non-

observance of the prohibition against expression of per-

sonal opinions on the ultimate issue by counsel. The

Court referred in a footnote (pp. 657-658) to the American

Bar Association’s Canons of Professional Ethics, Canon

22. which stated that it is not candid or fair for counsel

in argument to assert as a fact what has not been proved,

and Canon 15, which provided that it was improper

to assert in argument counsel’s personal belief in his

client’s innocence or in the justice of his cause. In Harris,

the Court thought the argument came disturbingly close

to the prohibitions of Canon 15. The conviction was

affirmed.

In Harris, the defendant’s testimony could be considered

the ‘‘lie’’ or ‘‘fabrication’’ which the prosecutor called it

only if the jury not only refused to believe appellant’s

App. 13

theory that a claimed third person intervened between

the taking of the missing automobile and its coming into

appellant’s possession but also refused to believe that

appellant had honestly forgotten the exact time of the

events.

We do not think the prosecutor’s statement here falls

into the error of expressing a personal belief in the testi-

mony, raising the spectre of a false issue of the credibility

of counsel, deplored in Greenberg v. United States, 1 Cir.,

1960, 280 F.2d 472, 474-475, (also cited by defendant)

where the prosecutor told the jury he was ‘‘a sort of

thirteenth juror.’

It was clearly apparent that counsel was commenting

on the evidence with no implication of personal knowledge

apart from the evidence. Mrs. Smith’s evidence was

squarely contradicted by other witnesses and not merely

impeached by her own affidavit.

The Trial Judge also overruled a motion for mistrial

made after the prosecutor said that defendant could have

threatened to murder anybody and then come and told

the jury everybody was standing around laughing and it

was not a threat. Defendant s&s this as an insinuation,

even raised in the hypothetical, that exceeds the bounds

of propriety. However, the threat that one may wind

up in the trunk of a car is clearly a death threat and the

prosecutor was drawing permissible inferences from the

words used. There was no misstatement of fact as in

Berger v. United States, 1935, 295 U.S. 78, where the

prosecutor who was characterized as striking ‘‘foul’’ blows

(p. 88) had misstated facts in cross examination, put into

the mouths of witnesses things they had not said and

suggested statements were made to him personally out of

court respecting which no proof was offered. ( p. 84)

App. 14

Defendant also contends that by failure to sustain

defendant's objections to a reference to Mrs. Smith’s

affidavit, the jury was left with the mistaken impression

that her out of-court statements were effective not only

to impeach her in-court testimony but to stand as affirma-

tive evidence. Thus defendant argues he has been con-

victed in part on extrajudicial statements of a witress.

The affidavit was not offered in evidence here.

When defendant objected that prosecuting counsel in

closing argument was reading from an affidavit not in

evidence, the Trial Judge ruled he was merely looking

at it while relating the testimony as he had a right to do.

The Court also instructed the jury that earlier statements

(admissible only to impeach the credibility of a witness)

do not establish the truth cf the statements.

We have scrutinized all of the authorities to which our

attention has been drawn by counsel on both sides. We

are satisfied that the judgment of the District Court must

be affirmed.

AFFIRMED.

A true Copy:

Teste:

ee ee EEE EEE EERE RRO OOOO OREO EEE EEO en ae

Clerk of the United States Court of

Appeals for the Seventh Circuit.

App. 15

APPENDIX “B”

Ghited States Court of Appeals

SF or the Beventh Circuit

Thursday, September 2, 1971.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

No. 18562 vs.

DOMINIC A. CARZOLI,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

IT IS ORDERED by the Court that the petition for re-

hearing filed in this appeal be and the same is hereby

denied.

As the Petition for Rehearing has revealed an ambiguity

in the wording, the next to the last sentence on page 7 of

the Opinion is amended to read:

‘‘At that time defendant said he had been warned of

his rights earlier on July 12, 1968 but not on J anuary

22, 1969, contrary to the testimony of Agents Knitter

and Nestor at the trial who had both said he was again

told of his rights on January 22, 1969.”