Petition for Writ of Certiorari — Pacelli v. United States

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SUPREME COURT, U. 8.

In the

Supreme Court of the Anited States

OCTOBER TERM, 1973

No. 23 1.488

VINCENT PACELLI, JR.

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STevEN B. DUKE

127 Wall Street

New Haven, Conn.

Counsel for Petitioner

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No.

VINCENT PACELLI, JR.

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Vincent Pacelli, Jr., respectfully prays that

a writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second Circuit

entered in this proceeding on January 11, 1974.

OPINION BELOW

The opinion of the Court of Appeals appears in the ap-

pendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on January 11, 1974, Mr. Justice Marshall

granted an extension of time in which to file this petition to

and including April 7, 1974. This Court's jurisdiction is in-

voked under 28 U.S.C. §1254 (1). Although the court below

reversed-the conviction and ordered a new trial, it is clear that

this Court has jurisdiction to’ review the refusal to order a

dismissal or a judgment of acquittal. Land. v. Dollar, 330 US.

731, 734, n. 2; United States v. General Motors Corp., 323 US.

373, 377.

QUESTIONS PRESENTED

1. Whether 18 U.S.C. §241 of Title 13 (Civil Rights) applies

to conspiracies to injure, intimidate or kill a prospective witness

in a federal criminal prosecution.

2. Whether one can be convicted of a conspiracy to deny civil

rights without proof that (a) the alleged co-conspirator knew

of and shared the purpose of abridging the civil rights, or (6)

that the alleged co-conspirator knew that the objective was a

deprivation of protected legal rights, or (¢) that the rights

involved were “specific and definite.”

STATUTES INVOLVED

18 United States Code, Chapter 13 Civil Rights

§241. Conspiracy against rights of citizens

If two or more persons conspire to injure, op-

press, threaten, or intimidate any citizen in the free

exercise or enjoyment of any right or privilege secured

to him by the Constitution or laws of the United

States, or because of his having so exercised the same;

If two or more persons go in disguise on the

highway, or on the premises of another, with intent

to prevent or hinder his free exercise or enjoyment of

any right or privilege so secured —

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

prisoaed not more than ten years, or both; and if

| death results, they shall be subject to imprisonment for

any term or years or for life.

| As amended April 11, 1968; Pub, L. 90-284, §103(a),

82 Stat. 75.

§245. Federally protected activities

(a) (1) Nothing in this section shall be con-

strued as indicating an intent on the part of Congress

to prevent any State, any possession or Common-

wealth of the United States, or the District of Colum-

bia, from exercising jurisdiction over any offense over

which it would have uisicton in the absence of

this section, nor shall anything in this section be con-

strued as depriving State and local law enforcement

authorities of responsibility for prosecuting acts that

may be violations of this section and that are violations

of State and local law. No prosecution of any offense

described in this section shall be undertaken by the

United States except upon the certification in writing

of the Attorney General or the Deputy Attorney Gen-

| eral that in his judgment a prosecution by the United

States is in the public interest and necessary to secure

substantial justice, which function of certification may

not be delegated.

(2) Nothing in this subsection shall be construed

to limit the authority of Federal officers, or a Federal

grand jury, to investigate possible violations of this

_ section. \

(b) Whoever, whe‘*<r or not acting under color

of law, by force or th~at or force willfully injures,

3 \

intimidates or interferes with, or attempts to injure,

intimidate or interfere with—

{A) voting or qualifying to vote, qualifying

or campaigning as a candidate for elective office,

or qualifying or acting as a poll watcher, or any le-

gally authorized election official, in any primary,

special, or general election;

(B) participating in or enjoying any benefit,

service, privilege, program, facility, or activity pro-

vided or administered by the United States;

any perquisite thereof, by any agency of the United

States;

(D) serving, or attending upon any court in

connection with possible service, as a grand or petit

juror in any court of the United States;

(E) participating in or enjoying the benefits of

any program or activity receiving Federal financial

assistance; ot

(2) any person because of his race, color, re-

ligion or national origin and because he is or has

been—

(A) enrolling in or attending any public school

or public college;

(B) participating in or enjoying any benefit,

service, privilege, program, facility or activity pro-

vided or administered by any State or subdivision

thereof ; “4

any perquisite thereof, by any private employer or

any agency of any State or subdivision thereof, or

joining or using the services or advantages of any

labor organization, hiring hall, or employment

: agency;

(D) serving, or attending upon any court of

anv Staie in connection with possible service, as a

grand or petit juror;

(E) traveling in or using any facility of inter-

state commerce, or using any vehicle, term‘nal, or

facility of any common carrier by motor, rail, w-ter,

Of air;

(F) enjoying the goods, services, facilities,

privileges, advantages, or accommodations of any

inn, hotel, motel, or other establishmert which pro-

vides lodging to transient guests, or of any restau-

rant, cafeteria, lunchroom, lunch countzr, soda foun-

tain, or other facility which serves the public and

which is principaily engaged in selling food or bev-

erages for consumption on the premises, or of any

gasoline station, or of any motion picture house,

theater, concert hall, sports arena, stadium, or any

other place of exhibition or entertainment which

serves the public, or of any other establishment

which serves the public and (i) which is located

within the premises of any of the aforesaid estab-

lishments or within the premises of which is physi-

cally located any of the aforesaid establishments,

and (ii) which holds itself out as serving patrons

of such establishments; or

(3) during or incident to a riot or civil disorder,

any person engaged in a business in commerce or af-

fecting commerce, including, but not limited to, any

person engaged in a business which sells or offers foz

sale to interstate travelers a substantial portion of the

articles, commodities, or services which it sells or

where a substantial portion of the articles or com-

- modities which it sells or offers for sale have moved

in commerce; or

(4) any person because he is or has been, or

in order to intimidate such person or any other person

or any class of persons from— . |

(A) participating, without discrimination on

account of race, color, religion or national origin,

in any of the benefits or activities described in sub-

paragraphs (2) (A) through (2) (F); or

(B) affording another person or class of per-

" sons opportunity or protection to so participate; or

(5) any citizen because he is or has been, or in

order to intimidaté such citizen or any other citizen

from lawfully aiding or encouraging other persons to

participate, without discrimination on account of race,

color, religion or national origin, in any of the benefits

or actvities described in subparagraphs (1) (A)

through (1) (E) or subparagraphs (2) (A) through

(2) (F), or participating lawfully in speech or peace-

ful assembly opposing any denial of the opportunity

to so participate—

shall be fined not more than $1,000, or imprisoned not

more than one year, or both; and if bodily injury results

shall be fined not more than $10,000, or imprisoned not

more than ten years, or both; and if death results shall be

subject to imprisonment for any term of years or for life.

As used in this section, the term “participating lawfully in

speech or peaceful assembly” shall not mean the aiding,

abetting, or inciting of other persons to riot or to commit

- any act of physical violence upon any individual ‘or against

any real or personal property in furtherance of a riot.

Nothing in subparagraph (2) (F) or (4) (A) of this sub-

section shall apply to the proprietor of any establishment

which provides lodging to transient guests, or to any em-

ployee acting on behalf of such proprietor, with respect to

the enjoyment of the go's, services, facilities, privileges,

advantages, or accommydations of such establishment if

such establishment is lo. ated within a building which con-

one Ren RCP CEP ERIE SUSPENSE EERE TNC ll

tains not more than five rooms for rent or hire and which

is accually occupied by the proprietor as his residence.

deter any law enforcement officer from lawfully carrying

out the duties of his office; and no law enforcement officer

shall be considered to be in violation of this section for law-

fully carrying out the duties of his office or lawfully en-

forcing ordinances and Jaws of the United States, the Dis-

trict of Columbia, any of the several States, or any political

subdivision of a State. For purposes of the preceding sen-

tence, the term “law enforcement officer” means any officer

of the United States, the District of Columbia, a State, or

political subdivision of a State, who is empowered by law

to conduct investigations of, oz: make arrests because of,

offenses against the United States, the District of Columbia,

a State, or a political subdivision of a State. Added Pub, L.

90-284, §101(a), April 11, 1968, 82 Stat. 73.

STATEMENT OF THE CASE

Petitioner was tried as the sole defendant in a two-count

indictment in the Southern District of New York. Count one

charged that petitioner and one Barry Lipsky conspired in

February, 1972 to deprive Patsy Parks of her civil rights in

violation of 18 U.S.C. §241, and that the conspiracy caused

Parks’ death. Count two alleged a violation of 18 U.S.C. $1503

in that defendant on or about February 4, 1972, by threats and

force, impeded and injured Parks on account of her having been

a grand jury witness and her being a prospective witness for the

Government in a criminal case then pending against the de-

fendant.

A four-day trial before a jury resulted in defendant's con-

viction on both counts. On June 1, 1973, the District Judge

imposed the maximum sentence on count one, life in prison,

and also imposed a concurrent five-year sentence on count two.

The Government's case consisted substantially of the testi-

mony of the alleged co-conspirator, Lipsky, who testified that

Patsy Parks came to him in a bar, asked him to put her in touch

with petitioner. She explained that agents had tried to subpoena

her earlier in the evening and she wanted to ask petitioner's

advice.’ According to Lipsky, he told Parks to wait for him

and he took a cab to petitioner's house. He got petitioner out

of bed, reported what Parks had said. Petitioner replied, “I

know what I have to do” (T. 77), and the two of them drove

back to Manhattan. On the way, they stopped and bought four

cans of gasoline. Lipsky then fetched Parks from the bar and

‘In fact, federal agents had unsuccessfully sought to serve a subpoena cn Miss

Parks. The subpoena required her testimony in a forthcoming federal narcotics

trial in which petitioner was a defendant.

the three drove to Long Island. They drove around for about

an hour, petitioner and Parks discussing the subpoena. At one

point, petitioner offered Parks money to leave town, according

to Lipsky (T. 81). Subsequently, petitioner stopped the car,

went to a phone booth and appeared to be making a call (T.

82). When he returned, he said he was tired and asked Lipsky

to drive.

Petitioner got in the back seat, with Lipsky and Parks in

the front. Shortly thereafter, petitioner stuck Parks in the neck

with a knife, then stabbed her about a dozen times in the chest

(T .84). Lipsky and petitioner hen drove to a wooded area,

where petitioner removed Parks’ jody. Lipsky removed the

gasoline from the car, petitioner pou.-d it over Parks’ body

(T. 85). Lipsky lit a match and dropped :+ on the gasoline

(T. 86). Flames flared up ten to fifteen feet high (T. 158).

The two men then drove back to petitioner's apartment, de-

stroying evidence along the way. They cleaned the car when

they got home, ther went to sleep (T. 91).

Parks’ charred body was found several days later.

Petitioner's princ:pal defense at trial was that Lipsky had

murdered Parks himself, alone or with an unidentified person,

and petitioner had nothing to do with the matter.

On appeal, petitioner claimed inter alia, that 18 U.S.C. §241

does not apply to conspiracies to impede or injure a witness and

that, in any event, the requisite conspiracy had not been proved.

The Court of Appeals rejected these claims but reversed for a

new trial because the trial judge had improperly admitted hiear-

say and the Government had breached its obligations to turn

over 18 U.S.C. §3500 material.

i iceesinsinntesnenaianionicon

REASONS FOR GRANTING THE WRIT

1. The decision below errongously construes the Civil Rights

Act and destroys the efforts of the 90th Congress to clarify i.

18 U.S.C. §241 makes criminal a conspiracy to “injure...

any citizen in the free exercise or enjoyment of any right or

privilege secured to him by the Constitution or laws of the

United States . . .” The right specified in thagsadiggment, herein

was the “right and privilege to give information to the proper

authorities concerning violations of the narcotics laws of the

United States.” Section 241, however, does not encompass con-

spiracies to injure Government witnesses. If any right was in-

fringed by the conspiracy charged in the indictment, it was the

right of the Federal Government to obtain the testimony of wit-

nesses, a right which is not within §241, but rather, 18 U.S.C.

$1503, which was the basis of count 2 of the indictment.

Prior to the amendment of §241 in 1968, there was uncer-

tainty about the applicability of §241 to conspiracies to injure

or intimidate witnesses. The Court had held, late in the 19th

Century, that the predecessor of $241 covered a conspiracy to

injure a citizen on account of his having informed a federal

marshal that defendants were violating federal liquor laws:

“The right of the private citizen who assists in putting

in motion the course of justice, and the right of the

officers concerned in the administration of justice,

stand on the same ground, just as do the rights of citi-

zens voting and of officers elected . . .”

in re Quarles and Butler, 158 U.S. 532, 536 (1895). There

was a dictum to the same effect in Motes v. United States, 178

USS. 458 (1900). Petitioner has found only one case, however,

in which the right to festify, as opposed to the right to “put in

motion the course of justice,” (In re Quarles and Butler, supra)

was held to be within §2-41, and in that case its appears that the

potential witness was also a party litigant. Foss v. United States,

266 F. 881 (9th Cir. 1920). Proffering information about law

violations is analogous to the right to vote, to petition the

Government, or to make a speech, but a citizen has no right

to testify in a trial on behalf of the Government in the same

sense in which he has a right to provide information or com-

plain about iaw violations. No citizen has standing to complain

if the Government or the court refuses to call him as a witness,

he can sue no one, he has not been injured. To call his poten-

tiality as a witness a “right or privilege secured to him by the

Constitution or iaws of the United States,” is to stretch those

words beyond their already bloated compass.

Moreover, the view of the court below was rejected in a care-

fully reasoned opinion by Justice Lamar. In United States v.

Sanges, 48 F. 78 (C.C.Ca. 1891), writ of error dismissed, 144

~ US. 310 (1892), Justice Lamar dismissed an indictment which

charged the defendants under the predecessor of §241 with

having conspired to injure and kill a citizen for having testi-

fied before a federal grand jury. Holding that the section did

not apply to federal witnesses, the court noted that the pri-

mary purpose of the statute when originally enacted in 1870

(16 Stat. 141) was to protect the right to vote and that the

Attorney Generai of the United States, in his 1890 report, had

declared the provision inapplicable to federal witnesses. The

court also noted that a specific statute (17 Stat. 13) had been

enacted in 1871 to cover conspiracies to intimidate or injure

federal witnesses and that this statute (predecessor of §1503)

described the offense in express terms and prescribed “a punish-

ment entirely different.” The court went ‘on to ngte:

The status of a witness in a court, pending either a

civil or criminal proceeding, is in law regarded as one

of obligation and duty, which he is compelled to per-

form, or of a function which he is obliged to dis-

charge, rather than a right on his part which he may

or may not exercise, according to his own will. The

right, in relation to his testimony, is the right of the

parties litigant, or of the government as the case may

be, to have it taken; not his own, either to offer or

withhold. They are entitled to the process of the court

to compel his attendance, and if he attends, to coinpel

him to testify, even against his will, to the whole truth,

and nothing but the truth.

With respect to the prosecution for a crime pending

in a federal court, or in a United States grand jury,

the right is a public right, i.e., the right of the United

States to have its winesses and their testimony, and to

have them protected in going to and returning from

the court. The wrong punished in such cases is a pub-

lic wrong, and its correlative is a public right.

United States v. Sanges, supra, 48 Fed. at 84.

The matter was never clarified by court decision prior to

1968. Confusion over the scope of §241 continued. See. e.g.

United States v. Guest, 383 U.S. 745 (1966) ; United States v.

Price et al, 383 U.S. 787 (1966). It was with this background

that the 90th Congress in 1968 enacted several amendments to

Chapter 13, United States Code, to clarify the scope of federally

protected civil rights. In P.L. 90-284, 18 U.S.C. §245 was added

_ to Chapter 13, and the penalty provision of §241 was amended

to change the penalty from $5,000 fine or ten years in prison

(18 U.S.C. §241, 1964 ed.) to its present form, increasing the

fine to $10,000 and authorizing a life sentence “if death re-

sults.” P.L. 90-284, 82 Stat. 73, U.S. Code Cong. and Admin.

—————— EE

News, Vol. 1, p. 89. The legislative history of these amendments

clearly indicates that Congress intended to confine the scope

of §241 to the “Federally protected activities” specifically enu-

merated in the new section §245. And although the activities

specified in §245 are extensive, there is nothing in that section

concerning the right to be a witness.

The purpose of the legislation, insofar as it relates to §241,

is clearly set forth in the Senate Report (Senate Report No.

721, U.S. Code Cong. and Admin. News, 90th Cong. 2d Sess.

1968, p. 1837, 1838) :

Several criminal and civil statutes designed to reach

both private and official interference with Federal

rights were enacted by Congress in the 1860's and early

1870's. This legislation included the statutory prede-

cessors of what are now sections 241 and 242 of the

Federal Criminal Code. A number of these early pro-

visions, however, were invalidated cr greatly restricted

in application by the courts; others were repealed by

later Congresses.

Only recently the Supreme Court had occasion to in-

terpret two of the still existing criminal provisions —

sections 241 and 242. In United States v. Guest, the

Court was faced with a Federal indictment based on

the shooting of a Negro educator, Lemuel Penn, while

he was driving through the State of Georgia; United

States v. Price involved the 1964 killings of the, three

civil rights workers in Neshoba County, Miss.

While Supreme Court decisions in these cases clarify

some aspects of sections 241 and 242, the opinion of

= the Court and the separate opinions of Justices Clark

Brennan in the Guest case point up a number of serious

deficiencies in both statutes and suggest how they

might be overcome.

* * *

And because these statutes do not spell out clearly

what kinds of conduct are prohibited, they lack the

deterrent effect that would result from plainly worded

prohibitions. Commenting on the vague language of

section 241, Justice Brennan said last year in United

States v. Guest, 86 S. Ct. 1170, 383 U.S. 745, 786, 16

L.Ed. 2d 239.

* * ® since the limitation on the statute's effec-

tiveness derives from Congress’ failure to define —

with any measure of speciicity — the rights encom-

passed, the remedy is for Congress to write a law

without this defect. To paraphrase my Brother

Douglas’ observations in Screws v. United States,

65 S. Ct. 1031, 325 US. at 105, 89 L.Ed, 1495, ad-

dressed to a companion statute with the same short-

coming, if Con desires to give the statute more

scope, it may find ways of doing so.

H.R. 2516 meets this need by spelling out the kinds

of activity to be-protected, and the bill provides an

effective means of deterring and punishing forcible

interference with the exercise of Federal rights. The

clear language of the bill would avoid unnecessary liti-

gation concerning coverage and would provide unmis-

takable warning to lawless elements not to interfere

with any of these activities.

Finally, there are two other significant defects in the

present laws which H.R. 2516 would remedy. First,

section 241 applies only to conspiracies. Thus, even

with respect to conduct held to be within the scope of

section 241, a prosecution may not be brought for ac-

tion by a single individual unless in some way another

person has been involved. Second, the maximum penal-

ties are inadequate for cases in which bodily injury or

death has occurred. Section 241 provides a maximum

penalty of a $5,000 fine or a 10-year prison sentence,

or both. Under section 242, the maximum penalty is

only a $1,000 fine or one year's imprisonment, or both.

H.R. 2516 would prohibit forcible interference with

any one of the specified activities by individuals acting

alone as well as by public officers or other persons

acting under color of law.

* -* *

Congress was planly responding to Mr. Justice Brennan's

invitation to give §241 a “more definite scope” by specifying,

in §245, the rights protected by §241. That the purpose of the

amendments was to exclude from §241’s coverage the acts in-

volved in the present indictment is fortified by the fact that

a substitute for the original bill, H.R. 2516, which was proposed

by the Subcommittee on Constitutional Rights, was rejected by

the Judiciary Committee. U.S. Code Cong. and Admin. News,

supra, p. 1838. The rejeted bill had specifically enumerated

four rights not included in the bill which became law. One of

them was the right to inform on violations of Federal Criminal

Law’. See Id. at 1860 (Views of Senator Ervin).

The proponents of the rejected subcommittee bill urged its

passage and expanded on their arguments in Senate floor debate,

while the sponsors of H.R. 2516 argued that it was preferable

to the Ervin amendment because it limited federal jurisdiction.

Senator Hart, for example, supported H.R. 2516 because it

“does respond to the comment of Justice Brennan. Its clear

language will avoid unnecessary litigation concerning coverage.

. . . [T]his legislation is more limited than that proposed by

the substitute proposal. It represents a minimal, but necessary,

Fedeiai presence in the field of law enforcement. The bill

which was recommended by the Constitutional Rights subcom-

mittee covered a more limited list of activities to be sure, but

it would cover those activities in an excessively broad way be-

cause the bill leaves out the element requiring race, religion, or

national origin to be a factor in the criminal conduct.” Cong.

Rec., Jan. 18, 1968, at 320.

This theme — that the Civil Rights statutes should be clarified

and restricted and that both §241 and the Ervin proposal were

overbroad — was echoed by other proponents of H.R. 2516,

including Senator Tydings (Cong. Rec., Jan. 25, 1968, p. 1018) ;

Senator Kennedy (Cong. Rec., Feb. 1, 1968, p. 1802; Feb. 5,

1968, p. 2084) ; and Senator Javits (Cong. Rec., Jan. 22, 1968,

p. 533-535). It could hardly be clearer, therefore, that Congress,

in P.L. 90-284, intended to exclude from the coverage of §241

and the newly enacted life penalty provision, conspiracies the

object of which was other than those enumerated in §245. This

is not to say, of course, that intimidation, injury or murder of

federal witnesses is to go unpunished. 18 U.S.C. $1503 ade-

quately protects the federal interest and, as the Senators argued,

the crime of murder is preeminently a matter of state concern

and state jurisdiction where it is not racially motivated. See

remarks of Senator Hart, Cong. Rec. Jan. 19, 1968, p. 398; of

Senator Javits, Cong. Rec. Jan. 22, 1968, p. 535.

The court below was of the view that if Congress in enacting

§245 had intended to cover the whole ground, it would have

expressly repealed §241. Yet $245 does not cover the entire

ground of §241, even as petitioner construes it, for §241 pun-

ishes conspiracies whereas §245 encompasses persons who act

singly in interfering with the specified federally protected rights.

Surely, however, there is no basis for believing that the

90th Congress intended the scope of protected activities to vary

depending on whether the activities were infringed by conspita-

tors or persons acting singly.

Manifestly, where the 1968 legislation was expressly intended

to clarify the “federally protected activities” rather than to

effect an outright repeal, 10 canon of statutory construction re-

quires a court to disregard tie legislative history of H.R. 2516

and its implications for §241.

If the Government's theory of §241 reflected in the decision

below were the law, there would be little need for any federal

criminal legislation other than §241, at least where two or more

persons act in concert and the victim is a citizen, for if §241

covers every conspiracy to injure, intimidate or oppress citizens

from engaging in activity which they either have a right to en-

gage in or in which there is a federal interest, it is hard to

imagine an illegal activity which would not amount to a civil

rights conspiracy. Until the present case, the Government seldom

pressed such a theory.”

2. The decision below deprives the concept of “conspiracy” of

its essential meaning and conflicts with several decisions of this

Court,

Even‘if there is a “tight” to be a witness in a federal criminal

case and that “right” is “secured [to the citizen] by the Con-

stitution or laws of the United States” within the meaning of

§241, and Congress intended to punish under §241 conspiracies

to injure, intimidate, or kill potential federal witnesses, the

Government proved no such conspiracy.

* Since the decision below, however, an expansive interpretation of § 241 was

employed in the Second Circuit against labor leaders for interfering with the

rights of union members not to participate in a concerted labor activity. A

different panel of the court below ordered the indictment dismissed, although

conceding that the union leaders’ activities come within the literal language of

$ 241 in that they conspired to infringe rights protected by the Taft-Hartley

Act. United States v. DeLaurentis, ....... F. 2d ........ (2a Cir., Jan. 21, 1974).

See also, United States v. Berke Cake [o., 50 F. Supp. 311 (E.D.N.Y. 1943).

There was, first of all, no evidence that Miss Parks desired

to testify or that, in any event, Lipsky was aware of such a

desire on her part. She told her roommate on the night of the

murder that “she did not want to testify in a public trial” (T.

44), She told Lipsky later that night that she had hidden in

her bedroom to avoid a subpoena and wanted to see petitioner

to " see if he would tell her what to do” (T. 73). It is absurd

to suggest that Miss Parks was injured, intimidated, oppressed -

or threatened “in the free exercise or enjoyment” of a right

which she manifestly did not want to exercise.

Assuming arguendo, however, that §241 is construed to

cover conspiracies to prevent witnesses from testifying unwill-

ingly and under compulsion (an anomalous form of “free

exrecise”), there was no proof of a conspiracy with that as its

objective. Lipsky’s testimony, if believed, would permit the in-

ference that he expected the gir! to be killed and knowingly

aided in the killing, but it clearly fails to establish that his

purpose in rendering such assistance was to prevent Miss Parks

from testifying. There is no testimony by Lipsky that he knew

or understood why petitioner wanted to kill the girl prior to

his rendering aid.

Whatever may be the case with other conspiracy statutes, a

conspiracy under §241 requires that the purpose of the con-

spiracy must be to deprive the citizen of a right which by statute

or case law has “been made specific and definite.” Screws v.

United States, 325 US. 91, 195 (1945). The specific purpose

of the conspiracy must have been to deprive the victim of such

a right. Id. at 107. In United States v. Guest, 383 US. 745

(1966), the Court said: “A specific intent to interfere with the

federal right must be proved. . . . [A] conspiracy to rob an

interstate traveler would not, by itself, violate §241. But if the

predominant purpose of the conspiracy is to impede or prevent

the exercise of the right of interstate travel . . . the conspiracy

becomes a proper object of federal law . . .” Id. at 760. Simi-

larly, it is not enough that the Government proved a conspiracy

to kill Miss Parks and that she was a potential witness. The

Government had to prove that the “predominant purpose” of

the conspiracy, 7.e. of both conspirators, was, at the very least,

to prevent her from testifying. The Government's proof does

not permit the inference that Lipsky had such a purpose. Since

there was no meeting of the minds on the proscribed object of

the conspiracy, end there were only two potential conspirators,

the prosecution fails. See LaFave and Scott, Handbook on Cri-

minal Law (1972), p. 488, 470; Model Penal Code §5.03.

Comment, p. 109 (Tent. Draft No. 10, 1960).

Finally, even if Lipsky and petitioner had been proved to

have shared a purpose to dispose of Miss Parks to keep her from

testifying, that would not be enough. There is no evidence that

either Lipsky or petitioner knew that Miss Parks had a right

to testify, for indeed, she did not.

Nor, given the case law on the matter, e.g., United States v.

Sanges, supra, p. 11, was the right to testify as a witness for

the Govétnment a right of the witness which was made “‘specific

and definite” by statute or case law at the time of the alleged

conspiracy. The plain teaching of Screws, therefore, is that

§241 does not apply to any conspiracy which the Government

could conceivably have proved.

The decision below, therefore, virtually eliminates ‘‘con-

spiracy” as an element of the offense under §241, and makes an

already vague statute unconstitutionally and unnecessarily over-

broad.

Conclusion

For the foregoing reasons, petitioner's petition for a writ of

certiorari should be granted and the decision of the court below

should be reversed with directions to dismiss count 1 of the

indictment or to enter a judgment of acquittal on that count.

Respectfully submitted,

STEVEN DUKE

Attorney for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

For tHe Seconp Criecurr

No. 368—September Term, 1973.

(Argued November 1, 1973 Decided January 11, 1974.)

Docket No. 73-2137

-_ =

Untrev States or AMERICA,

Appellee,

—against—

Vincent Pacetii, Jr,

Defendant-Appellant.

Before:

Moorz, Hays and MANSFIELD,

Circuit Judges.

Appeal from a judgment of conviction entered after a

jury trial in the United States District Court for the South-

ern District of New York, Charles H. Tenney, Judge, for

conspiracy to deprive a citizen of her civil rights, causing

P her death, in violation of 18 U.S.C. §241 (1972) and for

injuring a witness in violation of 18 U.S.C. $1503 (1972).

' Reversed and remanded for a new trial.

=~ = |

Steven B. Duxe, Esq., New Haven, Conn., for

Defendant-Appellant.

Paut J. Curran, United States Attorney, South-

ern District of New York (Arthur J. Vivi-

1347

ani, Walter J. Higgins, Jr., Peter L. Trueb-

ner, John D. Gordan III, Assistant United

States Attorneys, New York, N.Y., of coun-

sel), for Appellee.

_s-

Serr

MansFie.p, Circuit Judge:

Vincent Pacelli, Jr. anpeals from a judgment of convic-

tion in the Southern District of New York, following a jury

trial before Judge Charles H. Tenney on both counts of an

indictment charging that Pacelli (1) had violated 18 U.S.C.

§241' (1972) by conspiring with Barry Lipsky and others 7

unknown to deprive Patsy Parks of her right to be a wit-

ness at trial, causing her death, and (2) had violated 18

U.S.C. §1503? (1972) by using force to impede and injure

1 “$241. Conspiracy against rights of citizens

“If two or more persons conspire to injure, oppress, threaten, or

intimidate any citizen in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of the

United States, or because of his having so exercised the same; cr

“If two or more persons go in disguise on the highway, or on

the premises of another, with intent to prevent or hinder his free

exercise or enjoyment of any right or privilege so secured—

“They shall be fined not more than $10,000 or imprisoned not

more than ten years, or both; and if death results, they shall be

subject to imprisonment for any term of years or for life.”

2 “$1503. Influencing or injuring officer, juror or witness generally

“Whoever corruptly, or by threats or foree, or by any threatening

letter or communication, endeavors to influence, intimidate, or im-

pede any witness, in any court of the United States or before any

United States magistrate or other committing magistrate, or any

grand or petit juror, or officer in or of any court of the United

States, or officer who may be serving at any examination or other

proceeding before any United States magistrate or other committing

magistrate, in the discharge of his duty, or injures any party or

witness in his person or property on account of his attending or

having attended such court or examination before such officer, com-

missioner, or other committing magistrate, or on account of his

testifying or having testified to any matter pending therein, or in-

jures any such grand or petit juror in his person or property on

1348

SLE LOTT IE NETO A AE RN OR ROR ETS SOP SY BE EIR EM en

Parks who had been a grand jury witness and who had

been subpoenaed to be a witness for the government in a

narcotics case, 71 Cr. 614, then pending against Pacelli.

Pacelli was sentenced to life imprisonment for the 4241

offense and to a concurrent five-year term for the $1503

offense. Because the trial judge failed to exclude certain

hearsay declarations offered to prove the belief of the de-

clarants that Paceiii was guilty, and because the govern-

ment failed to disclose to defense counsel certain statements

made by its principal witness, Barry Lipsky, for use in

cross-exanlining Lipsky, we reverse and remand for a new

trial.

This case arises out of the brutal stabbing to death on

February 4, 1972, of Patsy Parks whose body—which had

been burned with gasoline flames—was found a few hours

later by a police officer in a desolate area of Massapequa,

Long Island. On the previous evening federal narcotics

agents had attempted to serve a subpoena on Parks or-

dering her to appear as a witness at the trial of the indict-

ment against Pacelli, which Judge Milton Pollack had sched-

uled to begin on February 8, 1972. Approximately nine

months earlier, on May 27, 1971, Parks had testified be-

fore a federal grand jury in the Southern District of New

York about a box which a friend told her contained money

and which was delivered to Vincent Pacelli, Jr. Later the

grand jury returned an indictment, 7i Cr. 614, against

Pacelli and three others for violations of the federal nar-

cotics laws.

account of any verdict or indictment assented to by him, or on

account of his being or having been such juror, or injures any such

officer, magistrate, or other committing magistrate in his person

or property on account of the performance of his official duties, or

corruptly or by threats or force, or by any threatening letter or

communication, influences, obstructs, or impedes, or endeavors to

influence, obstruct, or impede, the due administration of justice,

shall be fined not more than $5,000 or imprisoned not more than

five years, or both.”

1349

On the evening of February 3, 1972, the federal agents

seeking to serve the subpoena on Parks went to her Man-

hattan apartment, where they found her roommate, Patricia

Quinn, who was told by them that they were looking for

Parks in order to serve her with a subpoena. Upon learn-

ing shortly thereafter from Quinn of the attempted ser-

vice, Parks went to a Manhattan discotheque, the Hippo-

potamus, where she approached Barry Lipsky, a friend of

Pacelli, and told him she urgently wanted to see Pacelli

about the subpoena.

Lipsky testified that he had been working for Pacelli

since April 1971. After telling Parks to-wait at the Hippo-

potamus he tvok a taxi to Pacelli’s apartment at 501 Pelham

Road, New Rochelle, New York, where he found Pacelli,

his wife Beverly, Barbara Jalaba (Beverly’s sister) and

Al and Ida Bracer, who were close friends of Pacelli’s.

According to Lipsky, when he told Pacelli in the presence of

the others that a girl named Patsy wauted to see him about

a subpoena, Pacelli said: “That goddam box . . . I know

it’s about that goddam box. ...” Lipsky quoted Pacelli as

saying just before leaving with Lipsky to return to Man-

hattan, “I know what I have to do.”

Lipsky testified that the following events then occurred.

Pacelli and Lipsky drove Mrs. Pacelli’s rented car back to

Manhattan. On the way they stopped at a gasoline station

where Lipsky purchased four one-gallon cans of gasoline

which Pacelli said he needed “to burn up the girl’s body.”

Arriving at the Hippopotamus at approximately 2:00 A.M.,

they picked up Parks and proceeded to head—with Pacelli

driving—toward Massapequa, Long Island. During this

drive Pacelli offered Parks money to go to “California or

to Brazil” which Parks rejected since she said she had to

stay in New York for her job and for her child. When the

3 At the time of her death, Parks was separated from her husband.

The couple had had one child.

1350

ear, after about an hour, reached Massapequa Lipsky took

the wheel at the reqzest of Pacelli, who shifted to the

back seat. Almost immediately thereafter Pacelli stabbed

Parks in the throat. Parks pleaded with Pacelli not to hurt

her since she was a mother, but he said, “Die, you bitch,”

and stabbed her several more times in the throat until she

was dead. Thereupon Pacelli told Lipsky to drive to a

wooded area where they dumped Parks’ body and Lipsky

set it afire after Pacelli hac porred the gasoline over it.

On the way hack te New Rochelle, according to Lipsky’s

testimony, he and Pacelli stopped at a gas station where

Lipsky threw the contents of Parks’ pocketbook away after

' removing the money—$20—and then at a body of water

about three blocks from Pacelli’s apartment where Lipsky

threw into the water the knife which had been used to mur-

der Parks. V.ipsky spent the night at Pacelli’s apartment

and awoke curing the morning of the 4th to hear Pacelli’s

wife and sister-in-law complaining about the work they

had to do to clean blood from the rented car. Later that

dav Pacelli, his wife and sister-in-law, Lipsky and another

friend named Abbe Perez returned the rented car to an

Econo-Car agener on Westchester Avenue in the Bronx.

On the evening of February 5th, Lipsky had dinner with

Pacelli at a Manhattan restaurant where Pacelli expressed

satisfaction at having killed Parks since she would have

testified against him at his upeoming trial for narcotics

violations.

Pacelli and his co-defendants went to trial in the narcotics

ease hefore Judge Pollack on February Sth, and on Feb-

ruary 10th Judge Pollack remanded Pacelli to jail when

the prosecutor in the case advised him that Parks had

heen killed.

Of particular significance in the present case, in view

of objections by defense counsel ot trial, is Linsky’s testi-

mony regarding statements made hy certain friends and

1351

relatives of Pacclli at a meeting on February 10th, immedi-

ately after Pacelli’s 1emand, which Lipsky attended as the

result of a phone call to his home from Beverly Jalabe,

Pacelli’s wife, who told him to meet her at the Manhattan

apartment of Pacelli’s uncle and aunt, Frank Antoinette

Bassi. Lipsky was permitted to testify over objection that

when he arrived at the Bassis’ apartment Bever y took him

aside and told him that Parks’ body had been found and

Pacelli had been put in jail. Also present at th: apartment

were Beverly’s sister Barbara Jalaba, the Bas:.is, Pacelli’s

sister Loretta, Al Bracer, Abbe Perez, and a man named

Bayron. Lipsky testified that “Frank Bassi ws s saying that

there is a million places to put a body and yu don’t have

to ..... burn it up and leave it laying right ou’. in the middle

of nowhere for people to find.” Lipsky t-stified further

that Abbe Perez and Al Bracer took J.ips}.y aside and told

him to go away for a while. Later that night, in the pres-

ence of Pacelli’s wife, Perez gave Lipsky $1,000 for the trip.

The next day, February 11th, Lipsky went to Miami

Beach, Florida. On February 16th, Al Bracer again rented

the same car which Pacelli’s grou» had returned to Econo-

Car on February 4th. Two days later the car was found

in flames in New Jersey but a chemical analysis was able

to determine that traces of blood were present on the rug

located on the right front passenger side of the car. On

March 2, 1972, Lipsky was arrested by Nassau County

authorities when he returned from Florida. He confessed

that he had been present during the murder of Parks but

insisted that Pacelli had actually carried out the murder.

After his confession Lipsky was indicted for murder by

the State of New York. On March 7, 1972, Pacelli’s New

Rochelle apartment was searched pursuant to a warrant

and among the items seized were several coats similar to

the one which Lipsky claimed Pacelli wore on the night of

1352

the murder. One of these coats had traces of blood on it.

On March 13, 1972, a knife was recovered from the water

at the Cameron Boat Rental Company of New Rochelle,

which was two blocks from Pacelli’s apartment.

Shortly after his arrest by Nassau County authorities,

Lipsky began talking with federal narcotics agents about

Pacelli’s narcotics operations. As a result three new indict-

ments were returned against Pacelli: 72 Cr. 664 on June

5, 1972; 72 Cr. 1319 on December 4, 1972; 73 Cr. 441 on

April 16, 1973. In June 1972 Pacelli was convicted on 72

Cr. 664 solely on Lipsky’s testimony and in December 1972

Pacelli-was tried on 72 Cr. 1319. During cross-examination

of Lipsky, defense counsel produced tape recordings of

conversations between Lipsky, his attorney, and members

of the United States Attorney’s staff, which occurred in

March and April 1972, during which Lipsky was promised

immunity on any and all matters concerning which he would

provide evidence to the federal authorities. Since Lipsky

had perjuriously denied in his testimony in the trial of

_ both narcotics charges (72 Cr. 664, 72 Cr. 1319) that he

had received any consideration for his testimony, the con-

viction in 72 Cr. 664 was vacated and a mistrial was de-

clared in 72 Cr. 1319. A few days later, on December 22,

1972, Lipsky wrote a four-page letter to Robert Morvillo,

who was then Chief of the Criminal Division in the United

States Attorney’s office for the Southern District of New

York. In it he stated among other things that he was in a

“terrible mental state” because of the mistrial he had

caused, and declared that his “main purpose for the last

942 months” was to “iry my very best to assist the Gov-

ernment,” and that he “looked forward eagerly to testi fying

in narcotics cases for the Government, against Vincent

Pacelli Jr. and others.” (Emphasis in original)

1353

On January 15, 1973, Lipsky entered a plea of guilty to

a reduced charge of manslaughter in Nassau County.

When the plea was entered a letter from the United

States Attorney’s office for the Southern District. of New

York setting forth Lipsky’s cooperation in federal narcot-

ies investigations and his anticipated testimony against

Pacelli in the present case was read to the judge who

accepted the plea. Two weeks later, on January 31, 1973,

the indictment leading to this appeal was returned against

Pacelli. Trial of the indictment charging Pacelli with vio-

lating 18 U.S.C. §241 (1972) (Count I) and 18 U.S.C.

§1503 (1972) (Count II) commenced on April 30, 1973,

and on June 1, 1973, after the jury had on May 3, 1973,

found Pacelli guilty as charged, Judge Tenney sentenced

Pacelli to a term of life imprisonment on Count I and a

term of five years to be served concurrently on Count II.

Discussion

On this appeal Pacelli argues that 18 U.S.C. §241 does

not protect any federal right to be a witness at a trial

and that if it does his conviction must be reversed since

_ the trial court permitted the introduction of prejudicial

hearsay when it allowed Lipsky to testify as to what

Beverly Pacelli, Frank Bassi and others said to him at

the Bassis’ apartment on February 10, 1973. Furthermore,

Pacelli claims he was denied the right to fully cross-

examine Lipsky since the government did not disclose

statements made by Lipsky to the federal narcotics agents

and his letter to the United States Attorney and since the

trial court would not permit defense counsel to fully ex-

plore the circumstances of Lipsky’s confession to the Nas-

sau County authorities or Lipsky’s relationship and deal-

ings with the United States Attorrey’s office. Pacelli also

raises several other objections to the sufficiency of proof

1354

under (241 and to the conduct of the trial court and of

the government’s prosecutor.

Scope of Section 241

Title 18 U.S.C. §241 protects the free exercise of rights

“secured by the Constitution or laws of the United States.”

In deciding whether a right is so secured, it is not enough

simply to scan the Constitution or laws to see whether

the right is mentioned specifically. The Supreme Court

has long made clear that certain rights are implicitly

conferred by the Constitution’s establishment of a national

rovernment intended to be “paramount and supreme with-

in its sphere of action.” In re Quarles, 158 U.S. 532 (1895) ;

Logan v. United States, 144 U.S. (1892). One of these is

the right to testify at a federal trial in response to a

request or command of a federal district court. Our fed-

eral government has a particular interest in assuring a

prospective witness that he or she will be free to respond

by attending the trial of a federal indictment as a wit-

ness without being prevented from doing so by threats,

molestation or force. Otherwise the foundations of fed-

eral justice would be undermined. In Quarles the Court,

in holding that a eitizen’s right to inform federal authori-

ties concerning violations of the internal revenue laws is

secured by the Constitution even though it is not specifi-

cally mentioned in “any of the Amendments,” stated that

“Ttlo lenve to the several states the prosecution and

punishment of conspiracies to oppress citizens of the

United States, in performing the duty and exercising the

right of assistirg to uphold and enforce the laws of the

United States would tend to defeat the independence and

the supremacy of the national government.” 158 U.S. 536-

37. See also Motes v. United States, 178 U.S. 458 (1900) ;

Fess v. United States, 266 Fed. 881 (9th Cir. 1920) (right

to testify as a witness is secured by Constitution or laws

1355

of the United States). This principle applies with equal

force in the present case.

Appellant urges that even if the Constitution does se-

~ eure to citizens a right to testify at federal criminal trials,

Congress in 1968 responded to confusion over the scope

of §241 by listing the Constitutional and statutory rights

protected by the section. Congress did this, appellant con-

tends, not by amending §241 in any significant respect

but by enacting an entirely new section, 18 U.S.C. §245,

which made it unlawful to interfere with a number of spe-

cifically listed “federally protected activities” including:

voting, using government facilities, applying for employ-

ment with government agencies, serving as a petit or

grand juror, and receiving federal financial assistance.

Appellant says that Congress chose the extraordinary

course of amendment by implication rather than outright

repeal of §241.

It is well settled that repeals (or amendments) by impli-

cation are not favored and will be given effect only upon

a clear showing of Congressional intent, such as where the

two statutes at issue are in irrevocable conflict or the later

act unquestionably covers the entire subject of the earlier

one and is obivously designed as a substitute for it. See

Posadas v. First National City Bank, 296 U.S. 497, 503

(1936). No such showing is made here, This is not a case

like that cited to us by appellant, United States v. Lovely,

319 F.2d 673 (4th Cir.), cert. denied, 375 U.S. 913 (1963),

where both laws covered identical subject matter: South

Carolina’s consent to the acquisition of its land by the

United States for any public purpose and the procedures

to be followed for the vesting of jurisdiction over the lands

acquired in the United States. Here, in contrast, it is far

from clear that §245 covers the identical subject matter as

§241. Furthermore appellant concedes that (241 ontlaws

conspiracies to violate the free exercise of Constitutional

1356

rights and privileges whereas §245 is limited to specifically

enumerated substantive offenses, including those committed

by a single person. Compare Chase v. United States, 256

U.S. 1 (1921) with Gibson v. United States, 194 U.S. 182

(1964).

In support of his amendment by implication theory, ap- '

pellant relies upon Senate Report 721 issued by the Senate

Committee on the Judiciary to accompany H.R. 2516, the

bill which was ultimately turned into §245. See U.S. Code

Cong. and Admin. News, 90th Cong., 2d Sess., 1837, 1838

(1968). Specifically we are directed to that portion of the

Report which, after referring to Justice Brennan’s sugges-

tion in United States v. Guest, 383 U.S. 745, 786 (1966),

that Congress might render (241 more effective by defining

the rights encompassed by it with greater specificity, states :

“H.R. 2516 meets this need by spelling out the kinds of

activity to be protected, and the bill provides an effec-

tive means of deterring and punishing forcible inter-

ference with the exercise of Federal rights. The clear

language of the bill would avoid unnecessary litigation

concerning coverage and would provide unmistakable .

warning to lawless elements not to interfere with any

of these activities.”

However, if Congress had intended to restrict itself merely

to defining and limiting the rights described in general

terms in (241, it knew how to accomplish that objective.

It would have simply enumerated the detailed rights in

§241 itself, with appropriate restrictive language. Instead

it chose to enact a senarate law after receiving testimony

to the effect that the proposed new statute “.. . parallels

but does not sunplant those existing federal criminal stat-

utes [18 U.S.C, 241 and 242], and undertakes to cure some

of their deficiencies.” Hearings on 8S. 1026, etc., before the

‘Suhcommittee on Constitutional] Rights of the U.S. Senate

1357

Committee on the Judiciary, 90th Cong., 1st Sess. at 312

(1967). Nor was the failure expressly to limit or repeal

§241 an oversight. Congress simultaneously amended that

statute expressly to provide an increased penalty when

death or bodily injury resulted from activities prohibited

by the statute. It was well aware of the differing scopes

of the two respective statutes.

The Congressional purpose in enacting §245 was not to

repeal §241 but to remove any doubt as to the protection

that would be extended against private interference with —

certain specific rights enumerated in §245. Neither the

language nor the legislative history of the new statute

indicates the slightest intention to strip the national gov-

ernment of its existing ability under $241 to protect such

important interests as the right to remain in the official

custody of a United States Marshal, Logan v. United States,

144 U.S. 263 (1892), to inform on violations of federal law,

In re Quarles, 158. U.S. 532 (1895), to testify at proceed-

- ings hold under authority of federal law, Foss v. United

States, 266 Fed. 881 (9th Cir. 1920), to travel interstate to

arrive at the seat of government, United States v. Guest,

383 U.S. 745 (1965), to assemble and petition the Congress

for a redress of grievances, United States v. Cruikshank,

92 U.S. 542, 552 (1875). This would have been drastic

action entirely unnecessary and unrelated to the principal

_ purpose of the Committee, which was to draft a law effec-

“ tively dealing with racial violence only.‘

4 When it first emerged from the Senate Committee on the Judiciary,

H.R. 2516 applied only to deprivations of the listed federal rights which

were racially motivated. See 113 Cong. Rec. 37117 (1967). It was

subsequently amended after much acrimonious debate to prohibit depri-

vations of some federal rights which were nonracially as well as racially

motivated. See 114 Cong. Rec. 4570-71 (1968).

Appellant notes that the majority of the Senate Committee or the

Judiciary rejected an alternative to H.R. 2516 proposed by Senator

Ervin which would have included four enumerated rights not included

1358

In short, we find no basis in the new statute or in

its history warranting a departure from the rule against

amendments by implication. Indeed it would have been an

extraordinary step for Congress to repeal a 100-year old

generic statute which “from original enactment through

subsequent codifications was intended to deal . . . with ‘con-

spiracies to interfere with Federal rights and with all

Federal rights.’’*” See Price v. United States, 383 U.S. 787,

801-05 (1965).

Pacelli further argues that, even assuming the applica-

bility of §241, the government failed to prove a violation

because Parks did not want to testify. This contention

borders on the frivolous. It was her unwillingness to depart

from the jurisdiction and Pacelli’s own statement that “she

was set to testify against him at trial” that provided his

motive for his killing her.

Admission of Hearsay Evidence

Appellant next urges that it was prejudicial error on the

part of the trial court to have permitted Lipsky, over de-

fense objections, to testify as to the conduct and statements

of appellant’s wife, Beverly, of his uncle, Frank Bassi, and

of his friends Perez and Bracer on February 10, 1972, at

the Bassis’ apartment. We agree. Since the conspiracy to

in the bill which became law. One of the rights listed in the Ervin

bill and not in H.R. 2516 was the right to inform on violations of

Federal Criminal Law. However, appellant’s position might be persua-

sive if the majority had accepted rather than rejected the Ervin pro-

posal since the Ervin proposal—unlike the majority’s—was clearly con-

cerned with federal rights other than Fourteenth Amendment rights.

See S. Rep. 721, U.S. Code Cong. & Admin. News, 90th Cong., 24 Sess.

1968, at 1854-61 (1968) (minority views of Senator Ervin). The

majority’s narrow focus on racially motivated interferences with voting

or equal use of federal and state facilities (cr receipt of benefits)

indicates persuasively that the majority, in proposing H.R. 2516, did

not intend to preempt or restrict the whole field already covered by

18 U.S.C. §241.

1359

violate Parks’ civil rights had terminated with her death,

this proof was not admissible as declarations of a co-con-

spirator made in the course of a conspiracy or as evidence

of acts designed to show illegal activity on the part of the

conspirators themselves. See United States v. Lutwak, 344

U.S. 604 (1952); United States v. Costello, 352 F.2d 848

(2d Cir. 1965), vacated on other grounds, 390 U.S. 201

(1968). The purpose of the evidence was to get before the

jury the fact that various persons other than Lipsky, who

had been closely associated with Pacelli, believed Pacelli

to be guilty of having murdered Parks. Indeed the govern-

ment frankly conceded this in its brief:

“The fact that Pacelli’s wife summoned Lipsky to

the Bassis’ apartment is proof that she knew of his

involvement with Pacelli in the murder. The fect that

Pacelli’s wife, uncle, and close friends were discussing

at that meeting that the murder had been bungled by

leaving the body where it could easily be found—

rather than that Pacelli had been remanded for some-

thing he had not done—is strongly indicative that they

knew that Pacelli caused Patsy Parks’s death... .

{T]he jury was entitled to conclude, from the close

relationship to Pacelli of the persons at the February

10th meeting, that the source of their knowledge was

Pacelli himself, since he was the only person besides

Lipsky present at the commission of the crime.

“The additional fact that at this meeting Pacelli’s

wife told Lipsky to get instructions from Bracer, who,

with Perez, then told Lipsky he should go to Florida

and offered him the money to do so, was clearly evi-

dence that they knew that Lipsky had seen Pacelli

kill Parks.” *

5 Government’s Brief, p. 13.

1360

Since the extra-judicial statements clearly implied knowl-

edge and belief on the part of third person declarants

not available for cross-examination as to the source of

their knowledge regarding the ultimate fact in issue, i.e.,

whether Pacelli killed Parks, Lipsky’s testimony as to

them was excludable hearsay evidence. Krulewitch v.

United States, 336 U.S. 440 (1949); 2 J. Wigmore, Evi-

dence §267 (3d ed. 1940).

In the Wrvlewitch case a defendant was prosecuted for

inducing a woman —the complaining witness —to cross

state lines for the purpose of prostitution. The complain-

ing witness was permitted to testify at trial that several

weeks after the crime had been committed defendant’s co-

conspirator told her not to talk and suggested that they

(defendant’s co-conspirator and the complaining witness)

take the blame rather than defendant since defendant

“couldn’t stand it.”* The Supreme Court held that per-

mitting the testimony was reversible error since it intro-

duced an extra-judicial statement which “plainly implied

that petitioner was guilty of the crime for which he was

on trial.” The Court stated: :

“The statement plainly implied that petitioner was

guilty of the crime for which he was on trial. It

was made in petitiorer’s absence and the Government

made no effort whatever to show that it was made

with his authority. The testimony thus stands as an

unsworn, ont-of-court declaration of petitioner’s guilt.

This hearsay declaration, attributed to a co-conspira-

6 The complaining witness’ testimony as to her conversation with the

co-conspirator went as follows:

“She asked me, she says, ‘You didn’t talk yet?’ And I says, ‘No.’

And she says, ‘Well, don’t,’ she says, ‘until we get you a lawyer.’

the blame than Kay (the defendant) because he

it, he couldn’t stand to take it.’”

1361

tor, was not made pursuant to and in furtherance of

objectives of the conspiracy charged in the indictment,

because if made, it was after those objectives either

had failed or had been achieved.” 336 U.S. at 442.

The admission of testimony as to the third party’s declara-

tions in the present case violated the central purpose of

the hearsay rule, which is to give litigants “an opportunity

to cross-examine the persons on whom the fact finder is

asked to rely.’ Finman, Implied Assertions as Hearsay:

Some Criticisms of the Uniform Rules of Evidence, 14

Stan.*L. Rev. 682, 684 (1962). We cannot agree that the

only souree of the extra-judicial declarations and conduct

could have been Pacelli himself. Cross-examination of the

dcclarants, had they been produced as witnesses, might

have established that the information came from Lipsky

himself, from third persons, or from news media, espe-

cially sinee appellant had on the same day been jailed

as a result of the discovery of Parks’ body.

We consider it irrelevant, under Krulewitch, that the

extra-judicial statements and conduct admitted in this

ease may not have been intended by those involved to

communicate their belief that Pacelli murdered Parks.

The government concedes that if Lipsky had testified that

the various declarants (Beverly Jalaba, the Bassis, Perez

and Bracer) had told him at the February 10tk meeting

that Pacelli had admitted to them his participation in the

killing of Parks, the testimony would have been inadmis-

sible hearsay. While the danger of insincerity may be

reduced where implied rather than express assertions of

the third parties are involved, see Falknor, Silence as

Hearsay, 48 U. Pa. L. Rev. 192, 194-95 (1940), there is

the added danger of misinterpretation of the declarant’s

belief. Moreover, the declarant’s opportunity and capacity

for accurate perception or his sources of information re-

1362

oe]

main of crucial importance. See Morgan, Hearsay Dangers

and the Application of the Hearsay Concept, 62 Harv. L.

Rev. 177, 215 (1948). Here, for instance, there is no sug-

gestion that the declarants actually observed Pacelli com-

mit the crimes with which he was charged. Thus their

extra-judicial implied assertions have even less indicia of

reliability then the implied assertion involved in Krule-

witch, which was held inadmissible. Pacelli was entitled

to cross-examine the third party declarants in order to

test the validity of the inference—which the government

souvht to have the jury draw—that he had told the de-

elarants he had killed Parks. See Finman, supra, at 689

n.20.

As in Krulewttch the government in this case made “no

effort whatever” to show that the extra-judicial state-

ments of Pacelli’s wife. uncle and “friends” were made

with his authority. Generally there must be some evidence

of an agency before an alleged agent’s declarations can

be received as admissions. United States v. Coppola, 479

F.2d 1152 (10th Cir. 1973) ; 4 J. Wigmore, Evidence §1078

(Chadbourn rev. 1972). Nor is this a case where an

‘agency might be inferred from the surrounding cireum-

stances.’ See 2 J. Wigmcere, Evidence §280(2) (3d ed.

1940). Two of the four alleged declarants (Perez and

Bracer) were not even related to appellant, and it is far

from obvions that the statements attributed to appellant’s

wife were instizated by appellant.

7 DiCarlo v. United States, 6 F.24 364 (2a Cir.), cert. denied, 268

U.S. 706 (1925), where » witness was permitted to testify that the

Lipsky’s testimony regarding the declarations of the

third parties in the present case cannot be dismissed as

harmless error. Without his testimony the government

had no case. It relied upon him as the only eye-witness

(other than Pacelli) of the murder of Parks. His ered-

ibility was of crucial importance and there were ample

grounds for attacking it. He had been convicted of con-

spiracy to transport stolen securities. He had committed

perjury on several different occasions. Indeed a prior

conviction of Pacelli on a narcotics charge, which had re-

sulted from Lipsky’s testiniony, had been set aside and

a mistrial declared in still another narcotics charge against

Pacelli when it appeared that Lipsky had lied under oath,

testifying that he had not received any consideration from

the prosecutor when in fact he had been given immunity

as to any matter concerning which he provided evidence

against Pacelli. Lipskv, furthermore, had been a user of

cocaine, with a history of psychiatric disturbances. After

having been indicted for the Parks murder by the State

of New York in Nassau County, he had on January 15,

1973, been permitted to plead guilty to the reduced charge

of manslaughter, at which time the state court judge was

furnished with a letter from the United States Attorney

for the Southern District of New York attesting to Lip-

sky’s cooperation in federal narcotics investigations and

his anticipated testimony against Pacelli in the present

case.

Although the government at oral argument pointed to

other evidence as corroboratory of Lipsky’s testimony,

most of this proof was consistent with the defense theory

that Lipsky himself had ki'led Parks and was now at-

tempting to implicate Pacelli as the killer in an effort to -

obtain leniency for himself. Evidence that the rented car

used on the night cf the murder was later burned, that

traces of blood were discovered in it, and that a knife

1364

was recovered from tl:e spot where Lipsky swore that it

had been thrown did not, without Lipsky’s testimony, tend

to establish that Pacelli rather than Lipsky was the killer.

Furthermore the traces of biood in the car and on the

eoat which Lipsky testified as being similar to that worn

by Pacelli on the night of the murder were too minute

to permit investigators to determine whether they were

human blood and, if so, how old.

Against this background the conduct and extra-judicial

declarations attributed to the third persons in the Bassis’

apartment, which the prosecutor used in summation, as-

sumed a more important corroboratory role than might

otherwise have been the case since, in the government’s

words, they were “strongly indicative that they [the third

party declarants] knew that Pacelli caused Patsy Parks’s

death” and “that they knew that Lipsky had seen Pecans

kill Parks” (Govt’s Brief p. 13).

Failure to Disclose Jencks Act Statements

Paceili contends that he was denied a fair trial by rea-

son of the government’s failure to furnish him with certain

‘material to which he claims he was entitled under the

Jencks Act, 18 U.S.C. §3500, for cross-examination of

Lipsky. Although the government did furnish to Pacelli’s

counsel two statements made by Lipsky regarding the

Parks murder and his grand jury testimony on that subject,

it did not turn over (1) his letter of December 22, 1972, to

Mr. Morvillo stating that he was in “a terrible mental

state,” apologizing for his “foul-up” of the earlier narcotic

trial against Pacelli because of his having perjured him-

self, and expressing eagerness to testify for the govern-

ment against Pacelli, and (2) various statements by Lipsky

to law enforcement officers regarding his involvement with

Pacelli in the narcotics business. Appellant argues that the

failure to do so impaired his cross-examination.

1365

Under the Jencks Act a defendant in a federal criminal

trial is entitled, after a government witness has testified on

direct examination, to receive for purposes of cross-exami-

nation any “statement” of the witness in the government’s

possession “which relates to the subject matter as to which

the witness has testified.” 18 U.S.C. §3500(b) (1970). We

. have held that the statement must at least “relate generally

to the events and activities testified to” before the state-

ment must ke produced, United Stetes v. Cardillo, 316 F.2d

606, 615 (2d Cir.), cert. denied, 375 U.S. 822 (1963), and

that the defense is not entitled to statements which are

merely “incidental or collateral.” United States v. Birn-

baum, 337 F.2d 490 (1964). On the other hand, where the

government’s representations as to relevancy are chal-

lenged, the better practice is for it to make the disputed

statement available to the trial judge for an im camera in-

spection and ruling, which will normally be upheld in the

absence of a showing of abuse of discretion, see, e.g., United

States v. Covello, 410 F.2d 536 (2d Cir. 1969), cert. denied,

396 U.S. 879, rehearing denied, 397 U.S. 929 (1970), rather

than risk reverse! of a conviction because it played its

ecards too close to the vest. See United States v. Borelit,

336 F.2d 376, 393 (2d Cir.), cert. denied, 379 U.S. 960

(1964).

In this case, after Lipsky had testified on direct examina-

tion, appellant’s trial counsel asked to be given whatever

reports the government had concerning Lipsky’s conver-

sations with federal narcotics agents which led to the three

indictments (72 Cr. 664, 72 Cr. 1319, and 73 Cr. 441) of

Pacelli for dealing in narcotics. The government refused

to furnish these reports on the grounds that the conversa-

tions did not relate to the present case against Pacelli for

killing Paris. It also unintentionally failed to disclose the

existence of Lipsky’s letter to Morvillo, its inadvertence

being attributed to the fact that with “many prosecutions

1366

involving Pacelli” there was a “breakdown in channels of

communication” between the different prosecutors handling

the different cases. $m support of its position the govern-

ment points to the fact that the Assistant United States

Attorney who tried this case also tried a subsequent nar-

cotics case, United States v. Sperling, et al., 73 Cr. 441, in

which Pacelli was again a defendant and Lipsky a witness,

where the Assistant disclosed the letter as soon as it was

shown to him. After.a fresh review of Lipsky’s narcotics

statements the United States Attorney also forthrightly

disclosed upon oral argument that the government had dis-

covered “three short paragraphs” in two of the statements

which should have been disclosed but, again due to over-

sight, had not been produced and turned over to appellant’s

trial counsel.*

Accepting the government’s assertion that these non-

disclosures were inadvertent, we cannot agree with its

characterization of them as “harmless error.” Although

appellant’s counsel possessed an abundance of impeaching

material which he exploited at trial, none of this informa-

. tion conveyed quite so fercefully as Lipsky’s letter to

Morvillo the desperate state of Lipsky’s mind after he had

caused a mistrial by perjuring himself in the previous

narcotics prosecution against Pacelli. The letter, further-

more, contains a blatant lie to the effect that his perjury,

which caused the mistrial, had been unintentional rather

8 Upon oral argument the government stated that the Assistant U.S.

Attorney who tried the case hag reviewed the statement before trial

but “simply overlooked the three paragraphs . . . and never again in

getting ready for trial and putting the case before the jury had oc-

easion to go back to those statements.” However, the record dis-

closes that the narcotics statements were repeatedly “flagged” by de-

fense counsel, United States v. Miller, 411 F.2d 825 (24 Cir. 1969), and

that the Assistant specifically represented to the trial court during

trial and in response to particular inquiries by defense counsel that

he wou'd recheck the narcotics statements.

1367 .

than deliberate.* Appellant’s counsel would probably have

sought to make this letter the “capstone” of his attack on

Lipsky’s credibility, ef. United States v. Miller, supra, and

argued that it revealed a frantic—even mentally disturbed

—person who was ready to tell any lie to anyone in order

to save himself from a murder conviction in the state

court.° Denial of the opportunity to use such forceful

impeaching material bearing on the credibility of the gov-

ernment’s key witness mandates a new trial."

Our comments with respect to the government’s failure

to disclose Lipsky’s letter do not apply to its refusal to

furnish his narcotics statements. From our examination

of the samples of these statements which were handed up

to this court upon oral argument we are satisfied that if

these samples are representative, the contents did not re-

late to the subject matter of Lipsky’s direct examination

except for the three excerpts which the government con-

cedes that it inadvertently failed to disclose.** The mere

9 In his letter, Lipsky represented to Morvillo that he committed per-

jury in the prior case because he was “confused” by defense counsel’s

questions concerning promises by the prosecutor’s office. Later, in the

Sperling trial, under cross-examination based on the Morvillo letter,

Lipsky admitted that his prior perjury was not caused by any con-

fusion.

10 The letter was dated December 22, 1972. The murder charge was

not reduced to manslaughter until January 15, 1973.

11 Since argument of the appeal the United States Attorney has, with

characteristic forthrightness, turned over another letter written by

Lipsky, this time on December 6, 1972, to Assistant United States

Attorney Gerald A. Feffer, which recently came to light in the trial

of another case. Since it contains additional material that could have

been useful to the defense in ecross-examination of Lipsky, it serves

to reinforce the conclusion already reached by us with respect to

Lipsky’s December 22, 1972, letter to Mr. Morvillo.

12 Standing alone the failure to diselose the three excerpts would be

harmless error.

1368

spa pRaaamaAraneE

fact that Lipsky had referred generally in his direct testi-

mony to his employment by Pacelti in the narcotics busi-

ness did not entitle his counsel to explore his earlier de-

tailed statements on that matter, which was strictly col-

lateral to the subject of his. testimony, ie., the circum-

stances surrounding the Parks murder. See United States

v. Cardillo, supra.

Trial Court’s Rulings with Respect to

Cross-Examination and Prosecutor’s

Remarks in Summation

Since the case must be remanded we find it advisable

to consider the other issues raised by Pacelli’s counsel in

order to minimize such doubt or possible error as may

otherwise be encountered upon a retrial.

The able and experienced trial judge acted well within

his discretion in restricting certain attempted cross-exam-

ination of Lipsky. The subjects which defense counsel

sought to explore had either been adequately covered (e.g.,

- Lipsky’s prio: perjury, his testimony that he had been

struck by Nassau County police when interrogated, his

relationship with Pacelli in the narcotics business) or were

of extremely tenuous relevancy (the prosecutor’s discus-

: sions with Lipsky regarding his prior perjury). These

; are areas best left to the discretion of the trial judge,

who usually is best able to determine the relevancy of

proffered examination on the basis of his day-to-day fol-

lowing of th« evidence as it unfolds. See Smith v. [inois,

390 U.S. 129, 132 (1968); United States v. Mahler, 363

F.2d 673, G7% (2¢ Cir. 1966); United States v. Bowe, 360

F.2d 1, 14 (2d Cir. 1966).

Similar!v, the cross-examiration of Pacelli as to whether

he had said that if anybody should ever double-cross him

1369

he would “shoot their kneecaps off,” while presenting a

closer question, may well have been justified as evidence

of a generic threat bearing on the issue of intent to pre-

vent Parks from testifying against him, see I Wigmore

§102 (3d ed. 1940); United States v. Anuneiato, 293 F.2d

373, 377 (2d Cir.), cert. denied, 368 U.S. 919 (1961), pro-

vided the government had “support for the question,” cf.

United States v. Haskell, 327 F.2d 281, 284 (2d Cir.),

cert. denied, 377 U.S. 945 (1944), which it represents that

it did.

The prosecutor’s comments on summation were well

within the bounds of propriety. Pacelli’s contention that

he was denied a fair trial by reason disparaging re-

marks of the trial judge is not only frivtfous but mislead-

ing, being based on remarks lifted out of context by his

counsel on this appeal, a practice which departs from

ethical standards expected of such counsel. Such mild rep-

rimands of trial counsel as were delivered by the trial

judge appear from the record, when read in context, to

have been fully justified.

The judgment of conviction is reversed and the case is

remanded for a new trial.

tt, ai

or"

Moore, Circuit Judge (dissenting) :

I dissent and would affirm the judgment of conviction.

The key witness for the government was Lipsky. As so

frequently is the case, particularly when the crime is mur-

der, narcotics dealing or bank robbery, the government’s

witnesses are not outstanding members of the community

noted for their morality and rectitude. The jury is in-

variably instructed, as it was here, that, in the light of all

the facts brought out on examination and cross-examina-

1370

eine a Sie mste

tion, they may accept or reject any or all of the witnesses’

testimony. The opportunity to see the witness, hear his

testimony and appraise its worth is fundamental to our

system of criminal justice. fe

There were only two persons present at the scene of

Parks’ murder, Pacelli and Lipsky. Lipsky recited his ver-

sion of what he saw and heard. Many reasons for disbe-

lief were advanced, amongst which were the facts that

Lipsky was a perjurer and Lipsky had been promised

immunity and lenient treatment. Such a man might well

be disbelieved by a jury, and for xood cause. However,

this jury believed him.

Of course, error can be found if the jury was influenced

by improper testimony but any judge experienced in re-

viewing jury trials knows that every violation of text book

rules of evidence does not and should not constitute re-

versible error. Although a doctrine of “harmless error”

has been evolved by appellate courts, this is but a catch-

phrase for an ultimate conclusion of fact by the reviewing

court. Translated into realistic terms, it means not that

_the appellate court knows with any degree of certainty

: what piece or pieces of evidence influenced any particular

juror and in what way; but rather, on balance, was the

evidence so strong for conviction that the appellate court

is willing to substitute itself for the jury and decide that

the “harmless error’ evidence placed before the jury wout2

not—or better, should not—have changed the result. In

my opinion, the decision here should be made upon this

theory which, in turn, calls for an analysis of the specific

facts allegedly erroneously admitted.

As stated, the murder scene on February 4, 1972, was

luridly described and Pacelli’s role therein presented by

Lipsky. The method of the murder, the blood in the car,

the blood on the coat, Pacelli’s statement to Lipsky on

1371

February 5th of satisfaction »t having killed Parks, were

all properly before the jury. If the jury believed Lipsky .

(and it apparently did), nothing more was required.

Turning now to the “hearsay” constituting, according to

the majority, reversible error, of what does this hearsay,

so damaging as to require reversal, consist? On February

10th at the apartment of Frank Bassi (Pacelli’s uncle)

were gathered, Bassi, Pacelli’s wife, Beverly, Beverly’s

sister, Barbara, Pacelli’s sister, Loretta, three friends, Al

Bracer, Abby Perez and Barbara Jalaba, and a man named

Bayron. By this time via the public press, Parks’ murder

and the burning of the body had been revealed to the public

at large. Frank Bassi commented about the bungling

technique used in trying to dispose of the body. Lipsky was

induced to go away for a while and given $1,Uc9 by Perez

for that purpose. From this the majority conclude that

these “extra-judicial statements clearly implied knowledge

and belief on the part of third person declarants not avail- .

_ able for cross-examination as to the source of their knowl-

edge regarding the ultimate fact in issue, ie., whether

Pacelli killed Parks.” ‘However, there wes no declaration

that Pacelli had told them that he had killed Parks and

none expressed an opinion to this effect so that any such

“hearsay” problem is not'before us. Thus, Lipsky’s state-

ments of the February 10th apartment conversation added

so little—and this only by way of inference—to his actual

eye-witness testimony as to the events on February 4th that |

‘it does net, in my opinion, fall within the category of re-

versible error. i

Turning to the alleged Jencks Act violation, there is no

doubt that the Lipsky-Morvillo letter revealed that Lipsky

wished to go to extremes to obtain favorable prosecution

and court consideration. However, this field had been

adequately covered on cross-examination and the jury was

1372

| well aware of the circumstances under which the testi-

mony was given. Thus this letter did not contain the

crucial ammunition for cross-examination that the appel-

lant would have us believe.

With the majority’s conclusion and discussion of Section

241 I am in accord.

For the above reasons, I would affirm.

1373

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