# Petition for Writ of Certiorari — Pacelli v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1868%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 826 ## Text - ¢: 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; or 2 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‘* Untrev States or AMERICA, Appellee, —against— Vincent Pacetii, Jr, Defendant-Appellant. Before: Moorz, Hays and MANSFIELD, Circuit Judges. = er 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. =~ = | or 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 ee 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 a | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1868%3A1. Public record. Not legal advice.