Petition for Writ of Certiorari — Malizia v. United States
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In THE j
I
Supreme Court of the Hnited States
October Term, 1974
ERNEST MALIZIA,
Petitioner,
-against-
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
DAVID BREITBART
Attorney for Petitioner
401 Broadway
New York, N.Y. 10013
(212) 431-4150
J. JEFFREY WEISENFELD
On the Petition
a Se ne a a ee ene eee Se ar aoe
Dick Bailey Printers *P.C. Box X, Staten Isiand, N.Y. 10302 ® Tel.: (212) 447-5358
TABLE OF CONTENTS
Page
EGET OE TE EE TUL HELE ES TTT e TET Tee |
cLGCcVC GAGES EGNAS GAY cons Kae soa h ones I
EE Re ee -
Ee ere ri eee eee eee ee =
UOT IND sc ecc reed ee cence scabs sew das -
Reasons for Granting the Writ .................... 6
PCIE ETE LEON CRT CEETTORES Tee ee 34
EE OYE ENTE EET COE EEE EEOC TEETE 37
Cases Cited
Page
Alberty v. United States, 162 U.S. 499 (1896) ........ 34
Bailey v. United States, 410 F.2d 1209, 1217 (10th Cir.,
1969), cert. denied 396 U.S. 933 ..............0048.. 32
Barnes v. United States, 365 F.2d 509, 510 (D.C. Cir..
etn te Pe a ee en ae eae bea a5 6 & 64 Wis 18
Burroughs vo United States. 365 F.2d 431, 434 (0th
Cir.. 1906) 27
Burrup v. United States, 371 F.2d 556, $58 (Oth Cir..
1967). cert. denied, 386 U.S. 1033 .............2-.. 27
Case v. New York Centra! Railroad Co., 329 F.2d 936
EEE PE ksi Kcvenckeunce Sabo seeaeeueete kon 8
Chapman v. California, 386 U.S. 18 (1967)... .....- 15
Fulwood v. United States. 369 F.2d 960 (CADC 1966)
ch. a es 0) cs I ct 0 8 ke an eee een eke 27
Green v. United States. 309 F.2d 852, 856 (Sth Cir.
Pe a ake eee Ok Cee RR CAE RE REE Seen 26
Harrington v. California, 395 U.S. 250 (1960) ........ 15
Huffman v. United States. 297 F.2d 754, 759 (Sth Cir.,
1962) (Brown, J., dissenting) cert. denied, 370 U.S. 955
SN Oa ee ee ae re tales ahaa eee eet 25
Jenkins v. United States, 380 U.S. 445 (1965) ........ 25
Kelly v. State. 310 A.2d 538 (Md. Ct. App., 1973) .... 27
Krulewitch v. United States, 336 U.S. 440 at 453 (1949) 21
Leigh v. United States, 308 F.2d 345 (CADC, 1962) ... 14
Muaestas v. United States, 341 F.2d 493, 495-96 (10th
itis EE ra eae ee oe os ce eee Oe eeakee 21
Marshall v. United States, 360 U.S. 310 (1959) ....... 21
ili
Mastro v. United States. 390 U.S. 945 (1968) ........ 17
Michelson v. United States, 335 U.S. 469 at 475-76
SN oe OCC eA mae Ca ete ee OA 13
Mikus v. United States, 433 F.2d 719 (2d Cir., 1970) .. 20
Moon v. State, 198 P. 288 (Ariz. Sup. Ct., 1921) ...... 19
Mora v. United States. 190 F.2d 749, 752-53 (Sth Cir..
og LT REN a AER a ey oy aes ea Pr 7 21
Nick v. United States. 122 F.2d 660. 674 (8th Cir. 1941)
ee ee ee a io oe cS ve bk ocean eee keke Pe |
Parker v. United States. 404 F.2d 1193 (9th Cir.. 1968),
cert. denied 394 U.S. 1004, reh. denied 395 U.S. 941 .. 20
People v. Iverson, 9 Ill. App. 3d 706, 292 N.E. 2d 908
J ee ae eS Pere rere eer er erry ore 27
Powell v. United States, 297 F.2d 318, 320 (Sth Cir..
PE aod cd ada ee Ree ed KK ERE aE eed ee 25
Rice v. United States. 356 F.2d 709. 717 (8th Cir. 1966)
26
Schumacher v. United States, 216 F.2d 780, 788 (8th
Cir., 1954), cert. denied 348 U.S. 951 (1955) ......... 10
Shorter v. United States. 412 F.2d 428 (9th Cir..
sGus. dented 06 UG, GA os ccc cce veces scccas 33
State v. Jackson, 200 S.E. 2d 626 (Sup. Ct. N.C. 1973) 19
iv
State v. Viola, 82 N.E. 2d 306 (Ct. App. Ohio, 1947)
app. dismd.. 86 N.F. 2d 715, cert. denied 334 U.S. 816 19
Thaggard v. United States, 354 F.2d 735, 739-41 (Sth
Cir. 1965) Coleman, J. concurring) cert. denied 383
ON 7 Bie asa A Saye pera Tere
United States v. Apuzzo, 245 F.2d 416 at 421 (2d Cir.)
(en Banc). cert. denied, 355 V.S. 831 (1957) ......... 13
United States v. Bailey, 468 F.2d 652, 663 (Sth Cir.,
cf A Senn nS ar eee 2a eee a ee 25
United States. v. Barash, 412 F.2d 26. 31 n. 9 (2d Cir.,
PUN) Cort. Gene FIG U.S. BSE ww ee cee s nee 30
United States v. Bergman, 354 F.2d 931, 935 (2d Cir.
ae OU ETN eek ae eeekers back es 10
United States v. dorkenbagen, 468 F2d 43 (7th Cir.
1972) cert. denied 410 U.S. 934 ............... 2.00 20
United States v. Bowles, 428 F.2d 592, 596 (2d Cir.,
1970), cert. denied 400 U.S. 928 ...............00.. 25
United States v. Brown, 451 F.2d 1231, 1235 (Sth Cir.,
RNa At ee a Las Cae wha ke Ue 16
i/nited States v. Calarco, 424 F.2d 657 (2d Cir.,), cert.
denied, 400 U.S. 834 (1970) ............. 2... eee eee 20
United States v. Cassino, 467 F.2d 610, 619, (2d Cir.
1972) cert. denied 410 U.S. 913, 928, 942 ........... 30
United States v. Clarke, 343 F.2d 90 (3d Cir., 1965) ... 21
"
United States v. Craven, 458 F.2d 802 (CADC, 1972)... 9
United States v. Curcio, 279 F.2d 681 (2d Cir.) cert.
denied 364 U.S. 824(1960) ....................... 30
United States v. D'Angiolillo, 340 F2d at 457 ........ 10
United States v. Davidson, 367 F.2d 60, 65 (6th Cir.
OR re PIA Ukr ear AE oN eR, fe ore A. 26
United States v. Dichiarinte, 385 F.2d 333. 337 (7th
Cir. 1967), cert. denied subnom. ................ 17
OME NEAL Re RONGaKk ead edeeeEaeNi; eek eux 9
United States v. Domenech, 476 F.2d 1229, 1232 (2d
Cir., 1973), cert. denied—U.S.— .................. 30
United States v. Embree, 320 F.2d 666. (9th Cir., 1963) 33
United States v. Fioravanti, 412 F.2d 407, 416 (3d
Cir.,) cert. denied 396 U.S. 837 FRWEE Sha Cee decavces 25
United States v. Flannery, 451 F.2d 880, 883 (Ist Cir.,
1971) 26
et ae ee ee oe ee ee i a ee
United States v. Free, 437 F.2d 631, 635-36 (CADC,
PME SAVRGON KAGE KRW ae OET axe weve ecece buenas 9
United States v. Gray, 468 F.2d 257 (3d Cir.. 1972)... 19
United States v. Harrington. 490 F.2d 487. 490 (2d
Ce ROME ee enelbishthikeelinvne hs bhaxeiieundes ous 13
United States v. Harmon, 349 F.2d 316, 320 (4th Cir.,
1965)
vi
United States v. Harris. 391 F.2d 348, 355 (6th Cir..
1966) cert. dented 393 U.S. 674 2... ce ccc c cc avvccee OO
United States v. Hynes, 424 F.2d 754, 756 n. 2 (2d Cir.,
SFE Cort. Gemiel FFF U.S. FES occ cccesecsscacczes 30
United States v. lanvelli. 477 F.2d 999 (3d Cir., 1973),
A TL a Reena kee e re RN Te hades er ks 20
United States v. James, 208, F.2d 124 (2d Cir. 1953) .. 13
United States v. Jennings, 471 F.2d 1310, 1313 (2d
Cir... 8972) Cort. Goma S08 U.S. FSO ove cetvcuess 30
United States v. Johnson, 432 F.2d 626. 632-633
(CADC., 1970) cert. denied 400 U.S. 949 ........... 27
United States v. Kahaner, 317 F.2d 459, 483-484 (2d
Cir.). cert. denied. sub nom Corallo v. United States,
Sale ATE ES SPREE ech SX OR SS eee ae KaED 30
United States v. Kaufman, 453 F.2d 306, 311 (2d Cir.
PEPER hv a create eh aaeawarn canurnes Se AE ee 16
United States v. Kenner, 410 F.2d 693, 696 (2d Cir.
1969) cert. denied 396 U.S. 835, reh. denied 396 U.S.
ME ina oe sack 6 BES Ta EEE RSA EEEE CRORES 30
United States v. Knoll, 379 Fed. 427 (2d Cir. 1967)
ee, ee ar Ts oi eed bike babe as 13
United States v. Makekau, 429 F.2d 1403, 1404 (9th
Cir. 1970), cert. denied 400 U.S. 904 ............... 9
United States v. Marcey. 440 F.2d 281, 286 N.27
eG Sa Ur oar a eee ware, mr nateee 27
vii
United States v. Marrero. 486 F.2d 622, 625-27 (7th
“E> TER BAR Beret GREP a ree a IR Er rang ye eye 16
United States v. Martinez. 446 F.2d 118. 119 (2d Cir.
1971) cert. denied 404 U.S. 944 .................... 27
United States v. Meyers. 410 F.2d 693, 6% (2d Cir
1969), cert. denied 396 U.S. 838 ............-.2545. 36
United States v. Modern Reed & Rattan Co.. Inc.. 159
F.2d 656, 658 (2d Cir.) cert. denied 331 U.S. 831 (1947) 13
United States v. Nemeth, 430 F.2d 704. 706 (6th Cir.. ©
NINES Rds ah Sk AF ay RAN SP Shee ote eth Alen uinal hyar PRS oa Be Zt
i URE Ae Oe Ar Sree yy PENS ee Pee te LE ae
United States v. Pacelli, 491 F.2d 1108 (2d Cir.. 1974) . 12
United States v. Rao, 394 F.2d 354, 356 (2d Cir. 1968)
cert. denied 393 U.S. 845
United States v. Reed, 376 F.2d 226 (7th Cir.. 1967) .. 18
United States v. Rinaldi, 301 F.2d 576. 578 (2d Cir.
ihe, RN ERE, AR el dad DS FR Bum te NA 9 Panel dates et Fa RSE 21
United States v. Rivera, —F2d—(2d Cir. slip. op. 2591.
SLR RBIS A oe gh AR EA Sey nye iar Nema i UI hg iat A 21
United States v. Rudolph, 403 F.2d 80S, 807 (oth Cir..
1968)
Vill
United States v. Stdman, 470 F.2d 1158 (9th Cir.. 1972)
cert. denied 93 S.Ct. 948 (1973) 20
ee A ee a he ee ee ee ar Wee
United States v. Smith, 283 F.2d 760, 763 (2d Cir..
1960) cert. denied 365 U.S. 851 (1961) .............. 13
United States v. Stromberg, 268 F.2d 256 (2d Cir.
957), COTE. GEIS SUD MOM. ow ans case ca cen sseacees 20
United States v. Telfaire. 409 F.2d $52 (CADC, 1973) . 34
United States v. Super, 492 F2d 319, 321-23 (2d Cir.
klip ETRE EOE ETRY eT TEE TE te rT Te eee 10
United States v. Thomas, 282 F.2d 191 (2d Cir. 1960) . 30
United States v. Tolub, 309 F.2d 286 (2d Cir. 1962) ... 36
United States v. Tomaiolo, 249 F.2d 683 (2d Cir., 1957) 14
United States v. White, 355 F.2d 909 (7th Cir., 196€) . 19
United States v. Young, 463 F.2d 934, 939-40 (CADC,
SGT EE: n keucba end 05 C86E NEARED ATA MEE REAR EE 9
Wong Sun v. United States, 371 U.S. 471, 483 n.10
‘La. PERRET ETTORE TE CPE Cro ee ee ree 34
Wian v. United States, 397 F.2d 621, 625 (CADC,
SORTD nn ba k's Vink a beans 06eu hoes ee ee 9
ix
Other Authorities
1 U.S.C. Sec. 173 and 174
ay 64 8.6 S46 UEDA SE SSS 8 RR BE
28 U.S.C. Section 1254(1)
Federal Rules of Criminal Proced.:e. Rule 52(a) and
"| SRN SEE Ae ne as Pi a re be eee ere
IN THE SUPREME COURT
OF THE UNITED STATES
October Term, 1974
ERNEST MALIZIA,
Petitioner.
-against-
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner, Ernest Malizia, prays that a writ of certiorari
issue to review the order of the United States Court of
Appeals for the Second Circuit, dated September 17, 1974.
OPINION BELOW
The opinion of the Court of Appeals for the Second
Circuit affirming the judgment of conviction is annexed
hereto as Appendix “A”.
JURISDICTION
The order of the Court of Appeals is dated September
17. 1974. The jurisdiction of this Court is invoked under
Title 28, United States Code, Section 1254(1).
»)
QUESTIONS PRESENTED
1. Whether the admission into evidence of the
intormant’s fear of appellant; of petitioner's having been
one of the subjects of ‘Operation Flanker’; and of
petitioner's fingerprint record with the Bureau of Narcotics
and Dangerous Drugs, require reversal of his conviction.
2. Whether the District Court's charge to the Jury that
the case must be decided constituted prejudicial error.
3. Whether the Court erred when it permitted evidence
of Malizia’s flight as tendiig to show a guilty state of mind
with respect to this particular offense.
RULE INVOLVED
Federal Rules of Criminal Procedure, Rule 52(a) and
(b):
(a) Harmless Error: Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.
(b) Plain Error: Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the Court.
STATEMENT OF THE CASE
The Record
The record of the Court of Appeals consists of all filed
documents as well as the minutes of the trial and sentence.
The Facts
On February 14, 1974, petitioner was convicted, after a
jury trial, of a violation of 21 U.S.C. §173 and 174. On
March 19, 1974, petitioner was sentenced to a prison term
3
of ten (10) years (Motley, J.) (74 Cr. 750).
This conviction was affirmed by the United States Court
of Appeals for the Second Circuit in an opinion dated
September 17, 1974 (&4-1389).
The Trial
Prior to trial, a hearing was held on Petitioner’s motion
to determine whether the prosecution should be permitted
to introduce evidence of Petitioner’s flight. The motion was
denied and the government introduced such evidence at
trial.
The government charged that on February 17, 1970,
Malizia sold cocaine to a government informer named
Gerstenfeld.
The Government's Case
On February 16, 1970, Agent Leonard Vecchione met
with Gerstenfeld and instructed him to complete his
negotiations to purchase drugs from Malizia. (18)* On
February 17, 1971, Vecchione had Agent James King take
$16,500.00 and serialized it and prepare it for the sale (19).
At about 6:00-6:30 p.m., Vecchione met with the rest of
the surveillance team. He instructed them as to their
various surveillance assignments (19). Vecchione and
Edward Kayner then went to Park Place and Church Street
and met with Gerstenfeld. The informant was searched for
contraband and none was found (20).
The informant was then instructed to get into a cab
driven by George Gross, i: New York State Police officer
(21). Gerstenfeld got into the cab. Vecchione gave the
$16,500.00, in a brown paper bag. to Gross, with
instructions to give it to Gerstenfeld when they arrived at
the arranged location of the sale; Christine’s Luncheonette
*Reterences are to the typewritten transcript of trial.
4
on Pleasant Avenue in Manhattan (22). The cab then drove
to Christine’s (24). Vecchione and Kayner followed right
behind (24). At about 9:15 P.M. they arrived in front of
Christine's. The cab pulled up to the curb in front of the
luncheonette and Gerstenfeld got out and went in.
Vecchione and Kayner pulled up along side of the cab (160,
227-228) Gerstenteld sat at the counter. Malizia was
behind the counter (25-27, 204). Gerstenfeld handed
Malizia a brown paper bag (25-27, 159, 258). Malizia had
some money in his hand and appeared to be counting it
(27, 160, 161). Malizia came out from behind the counter,
lifted up Gersten‘eld’s jacket and placed a package
between Gerstenteld’s belt and the area of the small of his
back and then pulled the jacket down (162). Gerstenfeld
left Christine's and went to a pre-arranged location, where
the package was taken from him. The package was found
to contain cocaine (34, 167).
After the sale, Malizia left Christine’s and went to 118th
Street. A man who looked lik. *4alizia placed a package in
the trunk of a Pontiac which was registered to Rose
Malizia, the sister-in-law of appellant (310, 319).
Over defense objection, there was further testimony that
on February 24, 1971, as a part of a Bureau of Narcotics
and Dangerous Drugs operation, entitled “Operation
Flanker’, John Malizia, petitioner’s brother was arrested
(168, 329). On February 24 and February 25, first attempts
were made to arrest Ernest Malizia. Agents went to his
home and spoke to his family. They returned several times
but to no avail. A surveillance was placed on Malizia’s
home. A surveillance was also placed on Malizia’s mother’s
home on Long Island. Malizia was never seen during this
time (389-398).
There was no evidence that Malizia was ever informed
that he was wanted by the government (399, 401).
3
In early December of 1971, Malizia was arrested in
Rockland County on a traffic violation. When arrested, he
showed a false identification in the name of John Conite.
Malizia was taken to court and bail was set at $1,000.00.
Malizia never returned to court, nor did he attempt to
recover the car in which he had been riding (401-411, 414-
416).
On December 18, 1973, Malizia was arrested. At the
time of his arrest, he was carrying identification in the
name of Harry Luppes (420-424).
Gerstenfeld was not called as a witness. Vecchiciae
testified that efforts had been made to locate him, but :hey
were unsuccessful (41-42). From the _ beginning,
Gerstenfeld told Vecchione he would not testify against
Malizia (67). Over strenuous objec.ions, (42-46) Vecchione
was perm:‘tted to testify that some months after this sale. he
spoke to Gerstenfeld about testifying in this case.
Gerstenfeld told him that “he would never testify because
he was in fear of being killed’’ (46).
Edward Kayner testified that he checked the package of
cocaine for fingerprints. From the innermost wrapping he
retrieved a partial print. He took a fingerprint card of
Ernest Malizia’s which was kept at the Bureau of Narcotics
and Dangerous Drugs and had it checked against the
partial print. No fingerprint identification could. however, |
be made (266). This occurred on February 19, 1971 (377-
378).
Defendant's Case
Harry Peters, the owner of Christine's at the time of the
sale, stated that the agents could not have seen into his
luncheonette because the window through which these
observations were made was right in front of a grill and was
always foggy and covered with grease (455).
6
Furthermore, no one, including Malizia, was ever
allowed to be in the luncheonetie in the absence of Mr.
Peters of his wife (451). Other than the Peters, no one was
ever allowed behind the counter (450-451).
Mrs. Peters corroborated the testimony of her husband
(493-495).
REASONS FOR GRANTING THE WRIT
The issues raised in this case are of substantial
importance to the effective administration of justice. There
is no question that highly prejudicial evidence which was
totally unnecessary to the case was admitted into evidence.
This case raises serious questions about the admission of
state of mind testimony under circumstances where it
added nothing except prejudice to petitioner. Serious
questions are also raised by the extention of the harmless
error doctrine by the Court of Appeals below.
This case also raises the issue of whether a charge to the
jury that the ‘‘case must be decided’’ denied petitioner a
right to a hung jury and whether such a charge was
coercive.
This case alse raises serious questions relating to what
constitutes ‘plain error’ under Rule 52(b) F.R.C.P.
During this trial, the government introduced the
testimony of Agent Vecchione who stated that the
informant, Gerstenfeld, had told him that he would never
testify against petitioner because he was afraid of being
killed.: Defense counsel objected on hearsay grounds, but
~ |. Testimony of Leonard Vecchione:
Q. Did he tell you at that time what his state of mind was with respect to
testifying and whether he would ever testify?
A. Yes, sir
The informant said that he would never testify because he was in fear of being
killed. (46)
7
was overruled. The issue was clearly presented to the court
by defense counsel (44-45).
The government also introduced testimony that on
February 24 and 25, 1971, appellant and his brothers were
the subject of a goverument round-up entitled “Operation
Flanker’’.2 Again, this was over defense objection.
Finally, the government elicited testimony which
referred to appellant's fingerprints being on file at the
Bureau of Narcotics and Dangerous Drugs. No objection
was taken to this testimony.
Petitioner contends that each of the above by itself
requires reversal. They are treated as one point because
they supplement each other and the type of prejudice they
wrought is similar.
The Informant's fears of Malizia °
Gerstenfeld was not a witness during the trial. In order
to ward off a defense argument based on this. the
government offered testimony to explain Gerstenfeld’s
absence.
Judge Motley asked defense counsel if he intended to
make an issue of Gerstenfeld’s absence. Counsel replied
that he would only raise it in the context of the
government's general burden to prove guilt beyond a
reasonable doubt. (45) Evidently, Judge Motley felt that
2. Testimony of George Gross (168) and Donald Pinto (329).
3. Testimony of Edward Kayner (266)
Q. Did you take comparison fingerprints with you?
A. I brought three cards with me from the Federal Bureau of Narcotics.
Q. Was among those cards Mr. Malizia?
A. Yes, sir.
and Testimony of James King (378)
A. Now, he got a partial print on 2C and at that time I turned it over to
Investigator Kayner along with a fingerprint card of Ernest Malizia, to be
brought to the New York State Police Laboratory for further comparison
and identification.
8
counsel's answer indicated the need to allow the
government to explain why Gerstenfeld was not produced
at trial. The government then proceeded to elicit testimony
to the effect that Gerstenfeld was not in custody, not in any
way under the control of the government, and that efforts
to locate him were unsuccessful. Not being satisfied with
just this, the prosecution asked the following:
Q. Did he tell you at that iime what his state of
mind was with respect to testifying and whether he
would ever testify?
A. Yes, sir. The informant said that he would
never testify because he was in fear of being killed.
(46)
A vigorous objections by counsel was overruled on the
grounds that this testimony was not hearsay, since it went
only to the state of mind of the missing informant and that
its probative value outweighed its prejudice to Malizia.
Even if the characterization of this as an exception to “he
hearsay rule is correct, it was still error to admit it into
evidence. s
This presents a clear example of prejudice far
outweighing any probative value. The testimony that
Gerstenfeld was afraid of being killed was entirely
unnecessary for the purpose used. No party is required to
produce a witness which it cannot find. 2 Wigmore on
Evidence, §286 (3d Ed. 1940); Case v. New York Central
Railroad Co., 329 F.2d 936 (2d Cir., 1964). It was proper
4. Defense counsel previously objected to this testimony when the
government initially made its offer of proof to the court (42-45). This issue
was clearly understood by the court. cf. United States v. Garelle, 438 F.2d
366, 372 n. 17 (2d Cir., 1970) cert. dismissed, 401 U.S. 907.
5. While petitioner contends that the testimony was hearsay. this is not the
crucial issue on the case; rather, it is whether the prejudice to petitioner
outweighed any probative value.
Y
for the prosecution to show that it had attempted to find
Gerstenfeld and failed. This effectively closed any
argument based on his absence. United States v. Young.
463 F.2d 934, 939-40 (CADC, 1972); Wynn v. United
States, 397 F.2d 621, 625 (CADC, 1967), 2 Wigmore.
supra, §286.
Surely, in light of the facts, appellant was not entitled to
a “missing witness”’ charge.» United States v. Craven, 458
F.2d 802 (CADC, 1972); United States v. Free, 437 F.2d
631, 635-36 (CADC, 1970); United States v. Dixon, 469
F.2d 940, 942 n.4 (CADC, 1972); United States v. Noah.
475 F.2d 688, 691 (9th Cir., 1973); United States vy.
Makekau, 429 F.2d 1403, 1404 (9th Cir. 1970), cert.
denied 400 U.S. 904. But, the goverr’rent pressed on and
went far beyond permissible limits. To have allowed this
testimony was wrong. Wrong by any standard.
The state of mind of Gerstentfeld was virtually irrelevant
to the issue of the failure of the government to call him. It
was the fact that he was missing and that attempts to find
him had been made which closed the issue. The operation
of Gerstenteld’s mind added nothing except prejudice to
Malizia. It was Gerstenfeld’s unavailability and the fact
that this was not in any way attributable to the government
which were significant, not the state of mind which led to
it. 2 Wigmore, supra §286; Case v. New York Central
Railroad Co., supra.
Vecchione’s own testimony bears this out. As he put it,
there are many times that a witness says he is unwilling to
appear but this often changes.
The Court of Appeals in its opinion stated that this
evidence was necessary because:
6. None was ever requested.
10
An adverse inference is likely to arise if a party fails
to call a key witness who is expected to give
favorable testimony to his cause. ‘‘It would present
an anomaly in the law if, while one party may
comment upon the absence of an opposing party’s
witness, ...the opposing party were not
permitted to introduce evidence to excuse the
absence of such witness."’ Schumacher v. United
States, 216 F.2d 780, 788 (8th Cir., 1954), cert.
denied, 348 U.S. 951 (1955). On the other hand,
such testimony predicated upon fear of retaliation,
is so prejudicial that it should be excluded in the
absence of exceptional circumstances.
This is not correct. In United States v. Super, 492 F2d
319, 321-23 (2d Cir. 1974) the Second Circuit dealt with a
similar situation. In Super, the government could not
locate an informant who would have been an important
witness at trial. Testimony was given as to the
unavailability of this witness and as to attempts to find
him. There is no indication of any testimony as to why the
witness was missing or about his state of mind. The trial
court, upon this showing, charged the jury that the
Government was not required to produce the witness and
that no inferences for or against the defendants should be
drawn by reason of the Government’s failure to call him.
The court stated:
At the outset of the trial, Judge Judd indicated that
if Lombardi were equally unavailable to both sides,
the jury should not draw an inference one way or
the other. A determination that he was equally
unavailable was a finding he could properly make
here. See United States v. Bergman, 354 F. 2d 931,
935 (2d Cir. 1966); United States v. D'Angiolillo,
supra, 340 F2d at 457. Under all the
It
circumstances, we find no reason to question the
fact that Lombardi was in fact missing, that he was
not under Government control and that his
whereabouts were unknown. Therefore, the charge
of Judge Judd that no inference might be drawn by
the jury either for or against either party by virtue
of Lombardi’s absence was proper (Slip op. 1967-
77)
It is clear, that here there was no necessity to go into the
informant’s state of mind. The appropriate procedure
would have been for the government to request that a
charge similar to that employed in Super be given.” On this
record, such a request would have been well within Judge
Motley’s discretion to grant. Had she given such a charge it
would have been proper and certainly upheld on appeal.
The failure of the government to request the appropriate
remedy can not be used to justify the use of an
inappropriate one.
That this fear of being killed was not the result of a direct
threat made to Gerstenfeld makes matters even worse. For
by allowing this testimony in, the jury was clearly informed
that appellant was the type of person who by general
reputation alone. caused fear of death in those who
opposed him. This is insidious. If a direct threat had been
made, it could possibly be explained as momentary or
caused by anger and not a true indication of the nature of
the one who made the threat. Moreover, it would not imply
a general reputation. Here, however, Ernest Malizia just by
being Ernest Malizia was a threat to the safety of those who
cross him. No more damning implication could be
attributed to any accused. It is also likely that the jury. in
7. The Assistant United States Attorney advised the Court of the fact that
Gerstenfeld was unavailable to both sides (p. 18 Minutes of the
Proceedings on February 13. 1974. at 10:00 A.M).
12
some way, attributed the threat to petitioner and this
indicated his guilt.s
Petitioner's character was thereby made an issue even
though he did not testify. That this testimony may,
technically, have been an exception to hearsay, did not
render its admission into evidence proper.
This is so for two reasons: first, as stated above, it placed
appellant’s character in issue when he chose not to testify;
and second, the probative value was nil and the prejudice
great. cf. United States v. Pacelli, 491 F.2d 1108 (2d Cir.,
1974).
While this testimony was evidently sought to ward off
defense arguments it was presented on the government's
case-in-chief.
Courts that follow the common-law tradition
almost unanimously have come to disallow resort
by the prosecution to any kind of evidence of a
defendant's evil character to establish a probability
of his guilt. Not that the law invests the defendant
with a presumption of good character, but it
simply closes the whole matter of character,
disposition and reputation on the prosecutor's
case-in-chief. The state may not show defendant's
prior trouble with the law. Specific criminal acts,
or ill name among his neighbors, even though such
facts might logically be persuasive that he is by
propensity a probably perpetrator of the crime.
The inquiry is not rejected because character is
irrelevant; on the contrary, it is said to weigh too
much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny
8. The court never instructed the jury as to the limited purpose of this line of
questioning.
13
him a fair opportunity to defend against a
particular charge. The overriding policy of
excluding such evidence, despite its admitted
probative value, is the practical experience that its
disallowance tends to prevent confusion of issues,
unfair surprise and undue prejudice (footnotes and
citations omitted) Michelson v. United States, 335
U.S. 469 at 475-76 (1948).
United States v. Modern Reed & Rattan Co., Inc., 159
F.2d 656, 658 (2d Cir.,) cert. denied 331 U.S. 831 (1947):
United States v. James, 208. F.24 i124 (2d Cir. 1953); See.
United States v. Smith, 283 F.2d 760, 763 (2d Cir.. 1960),
cert. denied 365 U.S. 851 (1961).
...the search for the truth should be the
lodestone. Now in this search there are of course
areas of irrelevancy where matter is kept from the
jury because the danger of prejudice exceeds its
probative force. United States v. Apuzzo, 245 F.2d
416 at 421 (2d Cir.) (en Banc), cert. denied, 355
V.S. 831 (1957)
See, United States v. Harrington, 490 F.2d 487, 490 (2d
Cir., 1973). U.S. v. Knoll, 379 Fed. 427 (2d Cir. 1967) cert.
denied 389 U.S. 973.
This is exactly the situation we have here. The state of
mind of Gerstenfeld was, despite Judge Motley’s assertion
to the contrary, irrelevant to the issue of whether any
- inferences could be drawn from Gerstenfeld’s absence.
That this evidence was not directly offered as bearing on
guilt or innocence in no way diminishes its impact. It is
hard to believe that the prosecution was unaware of the
added benefit of this testimony.
In analogous areas, the courts have been extremely
careful to keep from the jury any evidence which would
14
reflect on the character or reputation of a defendant. This
has been so even where there is probative evidence
involved. Cases involving photographs or fingerprints used
tor identification demonstrate this. Even when important
to the government's case such items must be utilized in a
manner which does not imply or inform the jury of the
defendant’s bad character. e.g., United States v.
Harrington, 490 F.2d 487 (2d Cir. 1973); United States v.
Tomaiolo, 249 F.2d 683 (2d Cir., 1957); Leigh v. United
States, 308 F.2d 345 (CADC, 1962).
Revealing a past criminal record is only one way this can
be done. The principle set down in Michelson is not and
should not be limited to this alone. This testimony was
unnecessary, objected to, and highly prejudicial. On this
alone a reversal is required.
It is true that defense counsel went over this area on
cross-examination, but this was clearly to try to overcome
the harm already done. This cannot be considered as
nullifying the error or rendering it less prejudicial. See,
United States v. Modern Reed & Rattan Co., Inc., supra,
at 658.
It should also be pointed out that despite the ‘‘window
dressing’’, this case was not one of overwhelming proof of
guilt. In truth, it turned entirely on credibility. Vecchione,
Gross and Kayner testified that they looked into the
luncheonette and saw various portions of a transaction
between Gerstenfeld and Malizia. The Peterson's,
testifying for the defense, stated that this could not have
occurred as testifted to by the agents.
There were no photos, no tapes, no fingerprints, nothing
but the word of the agents. While the absence of such
9. The jury during its deliberation requested Mr. Peterson's testimony
(599).
15
evidence may have been explained, this does not raise the
level of proof. That level was hardly overwhelming.
The Court of Appeals seems to have predicated its
decision in part on the harmless error doctrine. This
doctrine is inapplicable. Here all the evidence was
testimony of various members of the surveillance team.
None of those cases where “overwhelming proof of guilt”
was found predicate such a finding on evidence from a
single source. To be overwhelming, evidence must be from
several sources (e.g. civilian witnesses. policemen, co-
conspirators, a defendant's own admissions) to find
overwhelming evidence of guilt from the mere fact that
several agents testified would be a return to the most
primitive and literal approach to the “weight of evidence.”
See, Chapman v. California, 386 U.S. 18 (1967);
Harrington v. California, 395 U.S. 250 (1960)
From any viewpoint, appellant was severely prejudiced
and should be granted a new trial free from such taint.
Overation Flanker
This was not all the prejudicial evidence of this nature
erroneously allowed into evidence. Over objection. the
prosecution was permitted to elicit testimony to the effect
that appellant was the target of “Operation Flanker”.
Again the use of this was totally unnecessary. There was no
need to inform the jury of this. Its only purpose was to
Stress the significance of appellant's criminal acts. That the
government chose to title this operation is not evidence. It
does not prove anything. Yet a juror hearing this could
believe only that this was a big case involving important
criminals.:0 It was, of course. used to establish the
government's characterization of Malizia and his activities.
10. This was reinforced by Judge Motley’s repeated references in the charge
to possession by appellant of a large quantity of drugs (S87, 589, 590).
16
This use was improper. Again Malizia’s character was
called into question. The reasoning and cases cited
previously apply to this testimony as well. See, United
States v. Brown; 451 F.2d 1231, 1235 (Sth Cir., 1971);
United States v. Marrero, 486 F.2d 622, 625-27 (7th Cir.,
1973).
Malizia’s Fingerprints
In attempting to prevent Malizia from deriving any
benefit from the absence of fingerprints on the contraband,
the government showed through the testimony of Kayner
and King that it had checked for fingerprints and found no
readable ones. This was all that was required to spike any
defense argument. But, this did not satisfy the government.
The jury was told, on two separate occasions, that Malizia’s
prints were taken to be checked against a partial print
found on the innermost bag in which the narcotics were
tound. Kayner stated that these prints were taken from
thsoe on file at the Bureau of Narcotics and Dangerous
Drugs. Thereby, unmistakeably intimating prior criminal
conduct on the part of Malizia. Again, this was totally
unnecessary. This was not an identification of Malizia by
his fingerprints. The prints were used only to show the
reason why there was no fingerprint evidence at trial. It
would have been sufficient to prove that tests were run and
that no readable prints were found. To tell the jury that
Malizia had fingerprints on file at the Bureau of Narcotics
and Dangerous Drugs, only prejudiced Malizia cf. United
States v. Kaufman, 453 F.2d 306, 311 (2d Cir. 1971).
To this. no objection was taken. Even if one had been
taken, the effect of the testimony would not have been
diminished. Petitioner contends this was plain error.
As pointed out previously:
If, at his trial, a detendant does not take the
witness stand in his own defense. or if he has not
—
|
himself been responsible for causing the jury to be
informed about his previous convictions, he is
entitled to have the existence of any prior criminal
record concealed from the jury. The defendant's
right to this protection is so well understood that
discussion of it is unnecessary. United States v.
Harrington, 490 F.2d 487 at 490 (2d Cir., 1973).
There are two basic types of factual patterns which raise
this issue: Namely, where there is direct evidence of
previous convictions or where the previous conflicts with
the law are inferred trom other evidence.
Cases dealing with the first type are only helpful in
stating the general right of a defendant to be tried by a jury
untainted by such evidence.
It is the second type of case which is pertinent here. Most
of these cases themselves fall into three categories. One,
“mug shots” or photographs; two, fingerprints: and three.
prior imprisonment of the defendant.
“Mug shot” cases are factually the least applicable here,
but because they are the most common. some discussion is
required.
The protiem usually arises, as it did in United States v.
Harrington, supra. where a photograph is used to assist an
in-court identification. Normally, this would present no
problem. The difficulty arises where a “mug shot” is used.
No inference of prior criminality arises from a mere
photograph of a defendant being in the possession of the
government. The possible sources for a photograph are
uniimited and one would not usually associate Possession
by the government of one’s photograph with a criminal
record. See, United States v. Dichiarinte, 385 F.2d 333.
337 (7th Cir. 1967), cert. denied sub nom.. Mastro v.
United States. 390 U.S. 945 (1968).
18
There are times, however, when:
... the introduction of photographs of a
detendant may well be equivalent to the
introduction of direct evidence of a prior criminal
conviction . . . and so deprived the defendant of
his right to a fair trial. United States v.
Harrington. supra, at 490.
e.g. Barnes v. United States, 305 F.2d 509, 510 (D.C. Cir..
1966) (involving a typical ““mug shot” with the numbers
covered by adhesive tape and writing on the back covered
with paper); United States v. Reed, 376 F.2d 226 (7th Cir..
1967) (‘mug shots” described as “photographs of former
inmates of state prison.”’); United States v. Harmon, 349
F.2d 316, 320 (4th Cir., 1965); United States v.
Harrington, supra, (incompetently masked “mug shot"’).
In Harrington, this court, after reviewing the above
cases, formulated three prerequisites to the introduction of
“mug shot” type photographs:
1. The government must have . Gemonstrable
need to introduce the photographs; and
2. The photographs themselves, if shown to the
jury, must not imply that the defendant has a prior
criminal record; and
3. The manner of introduction at trial must be
such that it does not draw particular attention to
the source or implications of the photographs. 490
F2d at 494
This analysis is equally applicable to the use of
fingerprints or to testimony about their use.
Those cases dealing with” references to prior
imprisonment almost always hold such references to be
prejudicial error. The reason is that the inference of prior
criminality is unavoidable. e.g. United States v. Tomaiolo,
19
249 F.2d 683 (2d Cir., 1957); United States v. Gray, 468
F.2d 257 (3d Cir., 1972); United States v. White, 355 F.2d
909 (7th Cir., 1966).
The usual use of fingerprint cards, etc., is to identify the
defendant as the perpetrator of a crime. For this purpose,
such evidence has been consistently upheld. Moon v. State,
198 P. 288 (Ariz. Sup. Ct., 1921); Stare v. Viola, 82 N.E.
2d 306 (Ct. App. Ohio, 1947) app. dismd., 86 N.E. 2d 715,
cert. denied 334 U.S. 816; Strate v. Jackson, 200 S.E. 2d
626 (Sup. Ct. N.C., 1973).
These cases, like Harrington, require that there be a
valid purpose for such evidence and it must not imply prior
criminal conduct. State v. Jackson, supra, at 633.
Turning to this case, it is obvious that the requirements
set down in Harrington and which should apply here, have
not been met.
First. there was no demonstrable need to say anything
about Malizia’s prints or from where they were obtained
and second, the existence of such fingerprints and that they
were filed with the Bureau of Narcotics and Dangerous
Drugs clearly implied a criminal record. The first ground
has previously been covered, the second, requires further
discussion.
Fingerprint cards are different from photographs as far
as the implication of prior criminality. Photographs can be
obtained througi non-governmental sources and = are
readily available. Fingerprints imply governmental action
of some sort. Ordinary people do not take fingerprints,
they do take photographs. Thus, the jury knowing Malizia
had a fingerprint record must necessarily have known that
they were taken by some governmental agency. They were
informed that the agency which possessed them was the
Bureau of Narcotics and Dangerous Drugs; to assume they
20
did not reach from this fact any inference of prior
criminality is ludicrous. The admission of this evidence was
error.
This was not a situation where the jury could have
believed the prints came from the instant arrest, since the
government clearly showed that Malizia was arrested long
after his fingerprints were used by Kayner (February 19,
1971). See United States v. Calarco, 424 F.2d 657 (2d
Cir..), cert. denied, 400 U.S. 834 (1970). The same is so for
the arrest on the traffic violation in Rockland County.
Nor was the testimony inadvertant, Mikus v. United
States, 433 F.2d 719 (2d Cir., 1970); Parker v. United
States, 404 F.2d 1193 (9th Cir., 1968), cert. denied 394
U.S. 1004, reh. denied 395 U.S. 941, or unresponsive,
United States v. Sidman, 470 F.2d 1158 (9th Cir., 1972),
cert. denied 93 S. Ct. 948 (1973). It was brought out by the
prosecution, United States v. Stromberg, 268 F.2d 256 (24
Cir. 1959), cert. denied sub nom., Lessa v. United States,
361 U.S. 863, which was not merely responding to a
defense trial tactic. United States v. Borkenhagen, 468
F.2d 43 (7th Cir., 1972), cert. denied 410 U.S. 934. Nor did
defense counsel ‘‘open the door’’. United States v. lannelli,
477 F.2d 999 (3d Cir., 1973), U.S. App. Pndg.
The crucial question then becomes: Was this plain
error?! ! Petitioner claims that it was. The primary
considerations are, the nature of the right injured by the
error and whether bringing it to the court’s attention could
have cured it, either by striking or by curative instructions.
There can be no question that the right involved is an
important one. United States v. Harrington, 490 F.2d 487
11. Federal Rules of Criminal Procedure. Rule 52(b).
21
(2d Cir., 1973); ef. Marshall v. United States, 360 U.S. 310
(1959).
It is also clear, that nothing could have been gained if
Judge Motley had been apprised. To strike the testimony
would have done nothing.
As to the effect of curative instructions:
The naive assumption that prejudicial effects can
be overcome by instructions to the jury .. . all
practicing lawyers known to be an unmitigated
fiction . . . (footnotes omitted) Krulewitch v.
United States, 336 U.S. 440 at 453 (1949)
(concurring opinion of Jackson, J.)
Bruton v. United States, 391 U.S. 123 (1968); United
States v. Clarke, 343 F.2d 90 (3d Cir., 1965); United States
v. Nemeth, 430 F.2d 704, 706 (6th Cir., 1970); United
States v. Rudolph, 403 F.2d 805, 807 (6th Cir., 1968);
Maestas v. United States, 341 F.2d 493, 495-96 (10th Cir.,
1965); Mora v. United States, 190 F.2d 749, 752-53 (Sth
Cir., 1951). See U.S. v. Rinaldi, 301 F.2d 576 $78 (2d Cir.
1962); United States v. Rivera — F 2d — (2d Cir. slip op.
2591, 5/17/74).
Petitioner does not assert that curative instructions have
no validity, only that they are a limited tool. There was
nothing Judge Motley could have said to soften the effect of
this evidence on the minds of the jurors.'2 In fact, further
comment may just have made matters worse. For these
reasons, the introduction of the testimony concerning
Malizia’s prints was plain error. See, United States v.
12. Certainly, Judge Motley’s fingerprints are not on file with the Bureau of
Narcotics and Dangerous Drugs. See, United States v. Robinson, 406 F.2d
64, 64-65 (7th Cir., 1969), cert. denied 395 U.S. 926.
22
Gray, 468 F.2d 257, 261 (3d Cir., 1972).
In conclusion, we should not lose sight of the cumulative
effect of the foregoing on the jury. ‘3 Without resort to
any evidence pertaining to guilt or innocence, the jury knew
that Malizia was a man to be feared, with aireputation as a
killer; that he had prior conflicts with the Bureau of
Narcotics and Dangerous Drugs, which necessarily
involved drugs; and that he was thought of by the
government as an important criminal.
This was hardly conducive to a fair appraisal by the jury
of Malizia’s guilt'+ and requires that he be granted a new
trial.
2. In her original instructions to the jury, the trial judge
stated:
Now, the logical result of that application (of the
law, as stated in the instructions, to the facts)
certainly is a verdict in the case. As we have already
pointed out, . . . this is an important case to both
the government and defendant, and therefore since
it is an important case, it must be decided. (573-
574)
13. Agent Vecchione testified that on February 6, 1971 he instructed
Gerstenfeld to ‘complete negotiations for the purchase of | kilogram of
cocaine on the following day from either Mr. Ernest Malizia or Mr. Josepm
Malizia.” (18) This was objected to as hearsay, which it was. Some
background hearsay may be necessary but the portion of this testimony
which identified the prospective sellers was not needed. It would have been
sufficient to state that instructions to complete a transaction were given.
The identity of those involved should have been established by competent.
non-hearsay testimony alone. The prejudice from this is not as great as that
arising from the other evidence discussed above Petitioner, however,
contends it was erroneous to admit this testimony and wishes to call it to
the court's attention.
14. It should also be noted that a charge on reasonable doubt almost
identical to that given here was characterized by the Second Circuit as
incomplete. United States v. Barrera, 486 F.2d 333, 339-40; 339 n.2 (2d
Cir., 1973).
23
Later in the charge, the judge advised the Jury:
As you deliberate, ladies and gentlemen, please be
careful to listen to the opinions of your fellow
jurors as well as to ask for an opportunity to
express your own views. Ne yne juror holds the
center stage in the jury room and no one juror
controls or monopolizes the deliberations.
If after listening to your fellow jurors and if after
stating your own view you become convinced that
your view is wrong, do net hesitate because of
stubbornness or pride of ycur opinion to change
your view, if you become convinced your original
view was wrong.
On the other hand, do not surrender your honest
conviction solely because of the opinion of your
fellow jurors or because you are outnumbered.
Now, because this is a federal court, your verdict in
this case must be unanimous. It must reflect the
conscientious conviction of each and every one of
you. (594-95)
After the entire charge, defense counsel specifically
objected to that portion of the charge which told the Jury
that the “case must be decided.” (S95). The Court,
however, ignored the objection. The case was then given to
the Jury. The time was 9:20 P.M., and it was a Friday night
preceding a holiday weekend (Washington’s Birthday). At
11:22 P.M. the Jury returned with its verdict of guilty.
The language set out above constituted an Allen'’-
like charge and will be referred to as such in the briet. The
language used and the setting in which it was given render
it a clearly coercive charge requiring reversal.
——
15. Allen v. United States, 164 U.S. 492 (1896).
24
The history of the Allen charge is replete with judicial
criticism. Its use has been approved only grudgingly, with
deep reservations, and in limited circumstances.
The use of this type of charge in this case presents a
somewhat novel variation. It is also somewhat surprising
that after so much has been written on the subject this
language would still be used.
The areas of inquiry in this case are:
1) Were the statements that ‘‘the logical
result . . . certainly is a verdict in this case’, and that the
“case must be decided”’, coercive per se?;
2) Was this coerciveness mitigated by any other portions
of the charge? and
3) Were these statements coercive in the setting in which
they were made?
It is appellant's claim that the charge was coercive both
on its face and as applied, and that nothing said by Judge
Motley mitigated that effect.
This area of law is a familiar one and there have been
numerous cases in all jurisdictions dealing with it.
The basic argument surrounding the Allen charge is
whether it is legitimate guidance or coercive interference.
The coercive elements which the Allen- type charge may
produce may be either substantive or circumstantial.
Substantive coercion occurs when the language of the
charge itself is coercive. Where it contains a misstatement
of fact or a statement that the Court has no authority to
make, regardless of how a Jury might react. Am. Crim.
L.R. 10; 637, 655-56 (Spring, 1972). Circumstantial
coercion relates primarily to the particular setting and
circumstances in which such a charge is given.
In this case both elements are present.
25
Substantive Coercion
Judge Motley’s charge informed the Jury that this was an
important case and that because it was important, it had to
be decided. This was erroneous. Jenkins v. United States,
380 U.S. 445 (1965); United States v. Bailey, 468 F.2d 652,
663 (Sth Cir., 1972); United States v. Harris, 391 F.2d 348,
355 (6th Cir., 1968) cert. denied 393 U.S. 874.
While a Jury need not be informed that it can properly be
unable to reach a decision, such a result is part of our
system of criminal justice. cf. United States v. Bowles, 428
F.2d 592, 596 (2d Cir., 1970), cert. denied 400 U.S. 928.
The requirement of impartiality, unanimity, and the
reasonable doubt standard require that an accused be
entitled to a hung jury. A verdict of guilty is not possible
unless each of the twelve jurors is convinced in his own
mind of guilt beyond a reasonable doubt. Implicit in this is
the right to a hung jury. If all twelve jurors cannot agree,
the jury must return a verdict of undecided. United States
v. Fioravanti, 412 F.2d 407, 416 (3d Cir.,) cert. denied 396
U.S. 837 (1969); Thaggard v. United States, 354 F.2d 735,
739-41 (Sth Cir. 1965) Coleman, J. concurring) cert. denied
383 U.S. 958; Huffman v. United States, 297 F.2d 754, 759
(Sth Cir., 1962) (Brown, J., dissenting), cert. denied, 370
U.S. 955 (1962).
In Jenkins v. United States, supra, the judge informed
the jury, ““You have got to reach a decision in this case.”
This charge was a misstatement of the law and was, under
the circumstances of that case, held by the Supreme Court
to be coercive. See, Powell v. United States, 297 F.2d 318,
320 (Sth Cir., 1961) (“You ought to be able to reach a
verdict’’). At the very least it was an incorrect statement of
the law, a statement which told the jury they must do
something that was not, in fact, required.
Here, the charge was even more improper because it
26
said, without explanation, that the importance of the case
demanded a verdict. The clear implication was that the
case was an especially important one to the government;
with all the speculation to which such a possibility gives
rise. The attempt to balance this element by stating that
the case was also important to defendant failed, because
every criminal case is important to an accused. The same
cannot, in the same sense, be said about the government.’ °
By stressing this element the court only reinforced the
coercion to reach a verdict. Furthermore, Judge Motley
told the jury that the logical conclusion of their deliberation
was for the case to be decided. This clearly informed the
jury that any failure to reach a verdict would be not only
improper, but illogical as well. It is difficult to conceive of a
more prejudicial misstatement as to the role of the jury in
attempting to reach a decision. See Huffman v. United
States, 297 F.2d 754, 759 (Sth Cir. 1962) (dissenting
opinion), cert. denied 370 U.S. 955 (1962); United States v.
Flannery, 451 F.2d 880, 883 (1st Cir., 1971); Thaggard v.
United States, 354 F.2d 735, 740 (Sth Cir. 1965)
(concurring opinion); Green v. United States, 309 F.2d
852, 856 (Sth Cir. 1962); United States v. Bowles, 428 F.2d
592, 596 (2d Cir. 1970) cert. denied 400 U.S. 928 (1970)
Rice v. United States, 356 F.2d 709, 717 (8th Cir. 1966);
United States v. Davidson, 367 F.2d 60, 65 (6th Cir. 1966);
ct. Jenkins v. United States, 380 U.S. 445 (1965).
In this case, Judge Motley’s admonishment that the case
must be decided was given in the original charge.
16. This could have been clarified had the Judge explained that the
importance to the government was a general one, in seeing justice done,
rather than relating specifically to the charges against Malizia. e.g. United
States v. Hynes, 424 F.2d 754, 756-757 n.2 (2d Cir. 1970) cert. denied 399
U.S. 933. Moreover, the facts before the jury reinforced this
“importance”. The jury knew of operation “Flanker” and that Malizia was
“big people” (68).
27
Several cases have held that an Allen- like charge is less
likely to be prejudicial if given in the original instructions
or prior to, rather than after, the Court being apprised that
the jury cannot reach a verdict. e.g. Nick v. United States,
122 F.2d 660, 674 (8th Cir. 1941) cert. denied 314 U.S.
687; Fulwood v. United States, 369 F.2d 960 (CADC 1966)
cert. denied 387 U.S. 934; People v. Iverson, 9 Ill. App. 3d
706, 292 N.E. 2d 908 (App. Ct., 2d Dis., 1973); Kelly v.
State, 310 A.2d 538 (Md. Ct. App., 1973); See United
States v. Martinez, 446 F.2d 718, 719 (2d Cir., 1972), cert.
denied, 404 U.S. 944.
Those cases are distinguishable. In Nick v. United
States, supra, the court was referring only to that portion of
the Allen charge relating to the obligation of the minority
to listen to the majority. In Fulwood v. United States,
supra, at 962-963, the Instructions were to the effect that
the jurors should keep an open mind and weigh the
arguments of their peers. The charge also included a
statement that the judge hoped the jury would be able to
decide the matter. This was upheld since it was expressed
as a hope. See United States v. Johnson, 432 F.2d 626, 632-
633 (CADC., 1970) cert. denied 400 U.S. 949.
In People v. Iverson, supra, at 910-11, the court was
clearly addressing itself to the, “heed the majority”,
portion of the Allen charge.
In Kelly v. State, supra, at 542, the charge was to the
effect, ‘*. . . you must decide whether or not you can reach
a vecdict in this case.’’ as well as the general duty to listen
to the other jurors.
See, United States v. Marcey, 440 F.2d 281, 286 N.27
(CADC., 1971); Burroughs v. United States, 365 F.2d 431,
434 (10th Cir., 1266); Burrup v. United States, 371 F.2d
556, 558 (10th Cir., 1967), cert. denied, 386 U.S. 1033.
It is arguable that that portion of the Allen charge which
28
instructs the jury to “heed the majority’’ has a greater
coercive force when, in fact, there is a majority to heed.
Whether this is correct is debatable since such a charge
could dissuade a minority from ever forming. Green v.
United States, supra.
The timing of the charge, however, merely diminishes
the coercion, but does not eliminate the possibility. People
v. Iverson, supra, at 911 n.2.
The determination of the above is not crucial to this case.
Here, appellant complains of that portion of the charge
directing the jury to return a verdict. As to this the timing is
not significant. When a jury is told that they must reach a
verdict, the impact is not only to coerce a minority out of its
already held views, but clearly impedes the very formation
of a minority view. Green v. United States, supra at 856. A
juror faced with 10 or 11 jurors in agreement may well yield
before he even forms an opinion. If the juror believes that a
verdict must be reached, it is highly unlikely that he would
assume that he could convince all the others to share his
viewpoint. Requiring a verdict tends to strengthen the
majority at the expense of the minority throughout the
deliberations. Furthermore, here the verdict was reached
only two hours after the charge so that it is unlikely that the
effect of the charge dissipated.
The rest of the charge did not cure this coercion.
There have been numerous cases before this court where
the potentially coercive effect of the Allen charge has been
held to have been obviated by other language in the
instructions. Such is not the situation presented here. At
the end of the charge, Judge Motley told the jury:
On the other hand, do not surrender your honest
conviction solely because of the opinion of your
fellow jurors or because you are out numbered.'’
17. The use of the word “solely” implies there are times when an honest
conviction should be surrendered.
29
Now, because this is a federal court, your verdict in
this case must be unanimous. It must reflect the
conscientious conviction of each and every one of
you. (emphasis supplied)
This is totally inadequate to mitigate the coercive effect
of the earlier directive; that the case “must be decided”.
Such a charge, so long as it makes plain to the jury
that each member of the jury has a duty
conscientiously to adhere to his own honest opinion
und avoids creating the impression that there is
anything improper, questionable, or contrary to
good conscience for a juror to cause a mistrial,
... is still a permissible charge to be given in
proper circumstances... (emphasis supplied).
Thaggard v. United States, 354 F.2d 735, 739 (Sth
Cir. 1965) cert. denied, 383 U.S. 958.
The cases in the Second Circuit apply a similar standard
to that set out in Thaggard.
This case presents a somewhat different situation than
those previously dealt with by this court. Usually, the A/len
charge is given in the appropriate (or a slight variation).
The coercion alleged is implied and arises out of the
general language (or the variation) of the Allen charge.
This court has repeatedly held, under the above
circumstances, that where the judge made it clear to the
jury that none of them should yield his conscientious
judgment, the charge was not coercive.
In relation to this case, the cases decided by the Second
Circuit have in common two distinctions: first, in none of
those cases was the language used nearly as coercive as that
used here and, second, in all of those cases the language
used to informhthe jury that they did not have to yield
conscientiously held views was clearer and in almost all
30
instances much more thorough. '*
See, United States v. Tolub, 309 F.2d 286 (2d Cir. 1962);
United States v. Kahaner, 317 F.2d 459, 483-484 (2d Cir),
cert. denied, sub nom Corallo v. United States, 375 U.S.
835 (1963); United States v. Curcio, 279 F.2d 681 (2d Cir.)
cert. denied 364 U.S. 824 (1960); United States v. Thomas,
282 F.2d 191 (2d Cir. 1960); United States v. Rao, 394
F.2d 354, 356 (2d Cir. 1968) cert. denied 393 U.S. 845;
United States v. Kenner, 410 F.2d 693, 696 (2d Cir. 1°69),
cert. denied 396 U.S. 835, reh. denied 396 U.S. 949;
United States v. Barash. 412 F.2d 26, 31 n. 9 (2d Cir.,
1969) cert. denied 396 U.S. 832; United States v. Hynes,
424 F.2d 754, 756 n.2 (2d Cir., 1970) cert. denied 399 U.S.
933; United States v. Martinez, 446 F.2d 118, 119 (2d Cir.
1971) cert. denied 404 U.S. 944; United States v. Cassino,
467 F.2d 610, 619, (2d Cir. 1972) cert. denied 410 U.S.
913, 928, 942; United States v. Jennings, 471 F.2d 1310,
1313 (2d Cir., 1973) cert. denied 411 U.S. 935; United
States v. Domenech, 476 F.2d 1229, 1232 (2d Cir., 1973),
cert. denied—U.S.—; United States v. Tyers, 487 F.2d
828, 832 (2d Cir., 1973); United States v. Meyers, 410 F.2d
693, 696 (2d Cir. 1969), cert. denied 396 U.S. 835; United
States v. Bowles, 428 F.2d 592 (2d Cir., 1970) cert. denied
400 U.S. 928.
It is clear, from the foregoing cases, especially, United
States v. Bowles, supra, that the charge in this case was
coercive. It resulted in a forced verdict. The right to
18. Compare §5.4(a), ABA, Standards Relating to Trial by Jury,
Instructions 8.11, Jury Instructions and Forms for Federal Criminal Cases
27 FRD. 39, 97-98 (1961); United States v. Gordon, 196 F.2d 886-891-2
(7th Cir.) rev'd. on other gds. 344 U.S. 414 (1952); United States v.
Barnhill, WS F.2d 164 (6th Cir.) cert. denied 371 U.S. 865; 1962:
Kawakita v. United States, 190 F.2d 506 (9th Cir. 1951) aff'd 343 U.S. 717
(1952); United States v. Brown, 411 F.2d 930 (7th Cir. 1969) cert. denied
3% U.S. 1017; United States v. Bailey, 468 F.2d 052, 663 (Sth Cir. 1972).
See. note 14a. supra.
31
disagree which was found to be implicit in the language of
the charge in Bowles was specifically removed from the jury
by Judge Motley’s instructions. This is a case where the jury
was, indeed, ordered to reach a verdict.
This could so easily have been avoided. The issue was
clearly presented to Judge Motley and she let the charge
stand without even verbalizing her decision.
Circumstantial Coercion
When the Allen-type charge is viewed in the context of
this case, the prejudice is even more readily apparent.
Here, after the charge, defense counsel specifically
objected. Yet, Judge Motley did nothing to diminish or
correct the impact of her erroneous statement that the case
had to be decided. It is hard, in retrospect, to understand
her refusal to say anything further to the jury on this issue.
Moreover, this case was given to the jury at 9:20 P.M. on
a Friday preceding a holiday weekend.:* The jury which
had been told they must reach a verdict and probably
anxious to begin their holiday, was not a jury disposed to
long deliberations. Since the case had to be decided, better
sooner-thereby preserving the holiday—than later. This
was not a case of overwhelming proof of guilt, but was in
fact a case entirely based upon credibility. These factors
elevated the coercion inherent in the charge to an even
more intolerable level.
For these reasons, appellant contends that his Sixth
Amendment right to a fair trial, his right to a unanimous
jury verdict, his right to fair and impartial jury
deliberations, and his right to have his guilt determined
19. Judge Motley’s position that this was the fault of defense counsel is
untenable. Even if court had not been adjourned an hour early on the day
before, it still would not have made any significant difference on when the
jury began its deliberation. Previously, Judge Motley showed no reluctance
to having the case go over to Saturday (271).
32
beyond a reasonable doubt (as well as his right to the
presumption of innocence) were all denied to him and that
a reversal of his conviction is required.
3. On April 13, 1974, immediately preceding the trial, a
hearing was held. During this hearing defense counsel
apprised the court of his objections to the introduction of
prosecution evidence tending to show that Malizia fled to
avoid prosecution in this particular case. Judge Motley
ruled in favor of the government. During trial, the
government, over renewed objection of defense counsel,
offered evidence that Malizia, after February 24, 1974, did
not return home, that he used a false identification and
jumped bail on a Rockland County traffic charge, and that
when arrested on this case he was carrying false
identification. This was error.
Here, the first attempt to arrest Malizia was made on
February 24, 1971, a full week after the alleged sale.
Moreover, no governmental official had informed Malizia
prior to his arrest, that he was wanted or for what charge he
was wanted.
The general rule is stated as:
The intentional flight...of a defendant
immediately after the commission of a crime, or
after he is accused of a crime, that has been
committed ...may be considered by the
jury ...in determining guilt or innocence. 27
F.R.D. S58.
Bailey v. United States, 410 F.2¢4 1209. 1217 (10th Cir.,
1969). cert. denied 396 U.S. 933.
For two reasons petitioner's pre-trial application should
have been granted as to his activities after February 24,
1971. First, because he did not flee immediately after the
commission of the crime and second, he was never
33
informed of the charge against him so that his flight cannot
be used in connection with the commission of the particular
offense in question.
Given the nature of the business in which it was alleged
Malizia engaged, a week's time is not insignificant.
There may have been numerous supervening events to have
caused him to follow the course of conduct which he did.
None of them may have related to this charge. Certainly, a
week later is not “immediately”. See, e.g. Bailey v. United
States, 410 F.2d 1209, 1217 (10th Cir., 1969), cert. denied
396 U.S. 933 (Defendant fled two days after he had learned
a friend had been arrested); Shorter v. United States, 412
F.2d 428 (9th Cir., 1969) cert. denied 396 U.S. 970
(Defendant fled immediately after F.B.1. agents who had a
warrant for defendant identified themselves and stopped
defendant's car).
Moreover, here, there was no evidence that Malizia had
been informed that he was wanted or for what he was
wanted. As stated in United States v. Embree, 320 F.2d
666, (9th Cir., 1963)
Perhaps... flight tends circumstantially, to
prove that he was guilty of some crime. But since
there is nothing in the record to indicate that he
was informed before his attempted flight, that he
was being sought in connection with the offenses
involved in this case, such flight does not constitute
an admission, or other evidence, that he is guilty of
those crimes. at 668
The Ninth Circuit made it clear in Shorter v. United
Sta:es, supra, at 430 that it is not a requirement that the
government prove that a defendant knew of the particular
charge. It did, however, state that the evidence of flight in
Embree did not have sufficient probative value to amount
to an admission of guilt. Such is the case here.
34
It is not necessary to fix a mechanical rule as to the
necessary prerequisite to the admission of evidence of
flight. Flight, however, may not be a reliable indication of
guilt, Alberty v. United States, 162 U.S. 499 (1896), and its
propriety has been questioned. Wong Sun v. United States,
371 U.S. 471, 483 n.10 (1963); United States v. Robinson,
475 F.2d 376, 384 (CADC, 1973); United States v. Telfaire,
469 F.2d 552 (CADC, 1973).
In light of the above and because flight may impress a
jury?® beyond its true value, this court should not permit
its introduction where the basis is as tenuous as that
presented here. Especially, as here, where the entire case
turned on credibility.
For these reasons petitioner contends that the
introduction of the evidence of his flight requires a reversal
of his conviction.
CONCLUSION
FOR THE REASONS STATED ABOVE THE
PETITION FOR A WRIT OF CERTIORARI
SHOULP BE GRANTED.
Respectfully submitted,
DAVID BREITBART
Attorney for Petitioner
J. JEFFREY WEISENFELD
On the Petition
20. Especially as here, where there was so much evidence pertaining to
flight. That the flight itself was clearly proved has no effect on the degree of
proof relating to the cause of that flight.
37
APPENDIX A
UNITED STATES COURT OF APPEALS
For tur Seconp Circvit
No. 1132—September Term, 1973.
(Argued June 18, 1974 Decided September 17, 1974.)
Docket No. 74-1389
Unirep States OF AMERICA,
Appellee,
Vv.
Ernest Matizia,
Defendant-Appellant.
Before:
Smith and Mansrietp, Circuit Judges,
and Bartets,* District Judge.
Appeal from a judgment of conviction after a jury trial
in the United States District Court for the Sovthern Dis-
trict of New York, Constance Baker Motley, Judge, for the
sale of narcotics in violation of 21 U.S.C. §§173, 174.
Affirmed.
J. Jerrrey WEIsENFELD, New York, N.Y. (Gold-
berger, Feldman & Breitbart, New York,
N.Y., on the brief), for Appellant.
* Of the Eastern District of New York, sitting by designation.
38
Bancrort Litr.erie.p, Jr., Asst. U.S. Attorney
(Paul J. Curran, U.S. Attorney for the
Southern District of New York, S. Andrew
Schaffer, Asst. U.S. Attorney, of counsel),
for Appellee.
Bartets, District Judge:
After a three-day trial in the Southern District of New
York before Constance Baker Motley, District Judge. and
a jury, Ernest Malizia was convicted on February 15, 1974,
of one-count indictment which charged him with the sale
of 995 grams of cocaine in violation of 21 U.S.C. §§173
and 174, He was sentenced to ten years imprisonment and
a $20,000 fine.
On appeal Malizia raises several errors, the most im-
portant of which was the admission of testimony that in-
formant Stanley Gerstenfeld stated that he would not
testify because of fear of death, and that Malizia’s finger-
prints were taken from the files in the office of the Bureau
of Narcotics and Dangerous Drugs.
The record reveals that at about 6 P.M. on February
17, 1971, Group Supervisor Leonard Vecchione of the Fed-
eral Bureau of Narcotics and Dangerous Drugs (B.N.D.D.)
and Investigator Edward Kayner of the New York State
Police proceeded to the area of Park Place and Church
Street where they met with Stanley Gerstenfeld, the Gov-
ernment’s informant, whom they instructed to enter an
undereover taxicab driven by State Police Investigator
George Gross, to whom Vecchione then delivered a paper
bag containing $16,500 in advaneed Government funds.
Gross and Gerstenfeld proceeded in the taxicab to Chris-
tine’s Luncheonette at 349 Pleasant Avenue in Manhattan,
followed by Vecchione and Kayner in an unmarked police
39
vehicle and by B.N.D.D. Agent John Maltz in a second
vehicle,
At approximately 9:15 P.M. they arrived in front of
Christine’s Luncheonette, whereupon Gross handed Ger-
stenield the paper bag containing the $16.500 and Gersten-
feld then exited the cab and entered Christine's. The
luncheonette was located below the level of the sidewalk
and was enclosed by two large glass windows on both sides
of a glass door, A serving counter ran from front to
back, perpendicular to the street. Gerstenfeld entered the
luncheonette and delivered the bag of money to Malizia
who was standing alone behind the counter. Malizia then
removed the money from the bag and after thumbing
through the bills, came from behind the counter, lifted up
the back of Gerstenfeld’s three-quarter length leather
jacket and stuck a yellowish package inside Gerstenfeld’s
belt in the smali of his hack and pulled the jacket down
over the package. Gross observed the entire transaction
from his taxicab and Vecchione and Kayner who stopped
momentarily also witnessed Malizia counting the money.
After the sale Gerstenfeld hailed a passine, cab which
took him to 86th Street and York Avenue where he trans-
ferred to Investigator Gross’ cab. Gross then drove
Gerstenfeld to 89th Street and York Avenue where they
met Vecchione and Gersteafeld delivered to Vecchione the
yellowish package, which upon analysis contained 995
grams of cocaine. Ten minutes after Gerstenfeld’s depar-
ture, Malizia was observed leaving Christine’s and pro-
ceeding to 118th Street and Pleasant Avenue where he
placed a brown paper bag in the trunk of a blue Pontiac
registered in the name of Rose Malizia, his sisterin-law.
One week later, on February 24, 1971, agents attempted
unsuccessfully to locate and arrest Malizia in New York
City and also at his house in Nanuet, New York. They
interviewed Malizia’s wife and children concerning his
40
whereabouts but without success. They maintained sur-
veillance at Malizia’s home on a regular basis for the next
two years and also on the homes of his relatives during
Christmas and Thanksgiving, all without success.
Malizia was not arrested until December 18, 1973, when
he was apprehended in the vicinity of 236th Street and
Johnson Avenue in the Bronx, after he had given the false
name of Harry Luppes, which was the name on a driver’s
license found in his possession. This was the second time
Malizia had given false identification while he was being
sought; the first being when he was arrested for a traffic
violation in Rockland County on December 5, 1971. At
that time he claimed he was John Conite, the name on a
forged driver’s license then held by him.
I
We turn first to the most troublesome issue concerning
the admission of testimony relative to the state of mind
of Stanley Gerstenfeld. Ordinarily one of the most im-
portant witnesses called by the Government in a narcotics
case is the purchaser. Here the purchaser was not a Gov-
ernment agent but the informant Gerstenfeld, who from
the beginning indicated to the Government agents that he
would not testify. Nevertheless an exhaustive search was
made by the Government for Gerstenfeld without success.
After testimony of the search was adduced, the Govern-
ment stopped and approached the bench for a conference
relative to its offer of proof to show that Gerstenfeld
had told Vecchione that he would never testify because
he was in fear of being killed. Realizing the importance
of the testimony of the informant in this case and at the
same time the prejudicial effect of the informant’s stated
reason for failing to appear, Judge Motley. outside of the
jury’s presence, indicated to the defendant’s counsel that
if he did not intend to comment adversely on the Govern-
41
ment’s failure to produce the informant, the testimony as
to the reason for the failure of the witness to appear
would be excluded. Instead of accepting this suggestion,
counsel replied that he would raise the question in his'
summation in the context of the Government’s failure to
sustain “its burden of producing all witnesses.” Only
after defendant's rejection of the suggestion did Judge
Motley allow the Government to explain why Gerstenfeld
was not produced at the trial’ on the premise that the
probative value of the testimony was sufficient to out-
weigh its prejudicial effect. “Informants in drug cases
are not Brahmins, nor are they noted for long-term occu-
pancy of well-tended premises. Their disappearance, vol-
untary or otherwise, is not extraordinary.” United States
v. Super, 492 F.2d 319, 322 (2d Cir. 1974).
We have, under cautionary instructions, upheld the tes-
timony of a witness explaining his own prior failure to
testify for the Government or his prior contradictory or
inconsistent statements because of fear of threatened re-
taliation. United States v. Place, 263 F.2d 627 (2d Cir.),
cert. denicd, 360 U.S. 920 (1959); United States v. Cirillo,
468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989
(1973); United States v. Berger, 433 F.2d 680 (2d Cir.
1970), cert. denied, 401 U.S. 962 (1971); United States v.
Scandifia, 390 F.2d 244 (2d Cir. 1968), vacated on other
grounds, 394 U.S. 310 (1969). While these cases permit
an impeached witness to explain the circumstances con-
cerning his own state of mind, they do not extend to the
explanation for the failure of a presumably favorable wit-
1 Appellant does not on appeal contest the district court’s ruling that
the statement was not barred by the hearsay rule “since it was limited
to bringing out the informant’s state of mind” (Tr. 43-44). Frank v.
United States, 220 F.2d 559, 564 (10th Cir. 1955); Mattor v. News
Syndicate Co., 176 F.2d 897, 903-904 (2d Cir.), cert. denied, 338 U.S.
858 (1949); see also Case v. New York Central Railroad Co., 329 F.2d
936 (2d Cir. 1964); VII Wigmore, Evidence § 1790 (3d 1940).
42
ness to testify. A much more serious risk of prejudice
exists in such a case because the witness is not present to
be cross-examined, even though the testimony concerning
his state of mind falls within the hearsay exception.
Vecchione, while on the stand, testified that Gerstenfeld
was not in the custody of the Government, that he was not
in any way under the control of the Government, that
efforts to locate him were unsuccessful, and that Gersten-
feld had told Vecchione that he would never testify because
“he was in fear of being killed.”’ It was a general statement
which did not point to Malizia as a potential killer and,
in fact, on cross-examination Vecchione testified that Ger-
stenfeld never told him that he heard that Malizia was
trying to kill him and further, that Gerstenfeld had worked
for Vecchione in other cases prior to making the purchase
from Malizia. Malizia claims that the explanation was
unnecessary and that all the Government was entitled to
was testimony to show that it had attempted without suc-
cess to find Gerstenfeld. See United States v. Young, 463
F.2d 934, 939-40 (D.C. Cir. 1972); Wynn v. United States,
397 F.2d 621, 625 (D.C. Cir. 1967). This, however, may not
be sufficient. An adverse inference is likely to arise if a
party fails to call a key witness who is expected to give
favorable testimony to his cause. “It would present an
anomaly in the law if, while one party may comment upon
the absence of an opposing party’s witness, ... the oppos-
ing party were not permitted to introduce evidence to ex-
cuse the absence of such witness.” Schumacher v. United
States, 216 F.2d 780, 788 (Sth Cir. 1954), cert. denied, 348
U.S. 951 (1955). On the other hand, such testimony predi-
cated upon fear of retaliation, is so prejudicial that it
should be excluded in the absence of exceptional cireum-
stances.
43
In this case Malizia had an option to exclude the testi-
mony but he rejected that option and chose instead to
exploit the absence of the witness, emphasizing upon sum-
mation that Gerstenfeld was “not here to tell you what
happened.” From these exceptional circumstances arose
the necessity to anticipatorily rebut the claim that the Gov-
ernment should have produced the witness. While we be-
lieve that cautionary instructions would have been advis-
able in this case, we conclude that on balance defendant
was treated fairly and that the admission of the preju-
dicial testimony was not sufficient to warrant a reversal,
particularly in view of the overwhelming nature of the
evidence by the seven agents who had participated in the
surveillance of the sale of February 17, 1971.
Malizia next challenges the adinission of the testimony
of Investigator Kayner to the effect that he brought three
fingerprint cards from the Federal Bureau of Narcotics,
among which was Malizia’s fingerprint, to the State Police
Laboratory to compare with a fingerprint located on the
innermost plastic bag containing the cocaine sold to the
informant. Kayner testified that no prints at all had been
readable from the outer two wrappings around the cocaine;
that the partial print removed from the innermost plastic
bag had heen compared with known parts of Malizia’s
prints but the print on the bag was not Malizia’s print.
The theory of Malizia’s objection is that reference to
Malizia’s fingerprints from the Bureau of Narcotics car-
ried the implication that he was a narcotics violator. It is
well known that the Government has in its files fingerprints
of most Government officers and employees as well as those
who had ever been in any branch of the military service
and those who have voluntarily offered their prints. It
would have been sufficient without causing any prejudice
had the Government’s witness simply testified that the fin-
44
gerprint cards had been produced from the Government
files instead of the Bureau of Narcotics files. However, no
card was introduced into evidence and no objection was
made to the testimony which, in fact, absolved Malizia,
whose counsel exploited the issue on both cross-examina-
tion and summation. Cf. United States v. Schwartz, 398
F.2d 464 (7th Cir. 1968), cert. denied, 393 U.S. 1062 (1969) ;
United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir.
1967), cert. denied, 390 U.S. 945 (1968). We find no re-
versible error.
II
Malizia raises three other claims of error, which are
of a substantial nature. In connection with establishing
proof that Malizia was a fugitive, the Government at-
tempted to show that Malizia was aware of the fact that
he was being sought for arrest by introducing evidence that
on February 24, 1971 agents stopped an automobile and
advised the driver, Malizia’s brother John, that they were
looking for Malizia. In examining Investigator Gross the
prosecutor asked “What brought you to John Malizia ex-
actly?” and he replied “Well, the night of the Operation
Flanker—,” and when Investigator Pinto was asked what
happened on February 24 and 25 he replied that “It was
an operation of the federal government called Flanker,
. 2’. The reference to the code word “Flanker” was a
passing innocuous reference and did not indicate that
Malizia was the target of the operation. No objection
was made to the use of the phrase and no curative instruc-
tion was sought. We find no error. See United States v.
Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974).
Malizia also claims error in the admission of evidence
of his flight, on the ground that he was not informed per-
sonally of the charge and no evidence was introduced as
to exactly when he fled. The existence of a warrant or
45
proof of defendant’ knowledge that he is being charged
with a crime is not a prerequisite to the admissibility of
the evidence of flight, United States v. Ayala, 307 F.2d 574
(2d Cir. 1962), and it is also proper to establish flight by
showing unsuccessful efforts by the police to locate the
defendant. United States v. Waldman, 240 F.2d 449 (2d
Cir. 1957); Kanner v. United States, 34 F.2d 863, 866 (7th
Cir. 1929). Evidence of flight, like any other circumstantial
evidence, has consistently been admissible as evidence of
guilt if con<idered with other facts of the case. United
States v. Ayala, supra; United States vy. Miles, 468 F.2d
482 (3d Cir. 1972). The evidence here was amply sufficient
to be admitted and justified Judge Motley’s instructions
to the jury on flight, which adequately protected Malizia’s
rights.
Finally, Malizia objects to the trial court’s charge as
being coercive. He claims that the trial judge gave what
he characterizes as an improper Allen charge in the orig-
inal charge to the jury. In her instructions to the jury
the trial judge stated, among other things: “As we have
already pointed out. T think Government counsel and de-
fense counsel have, and | will now point it out, that this
is an important case to both the Government and defen
dant, and therefore since it is an important case, it mu:t
be decided. You are not to single out any one instruction
alone as stating the law, but you have to consider these
instructions as a whole.” She also stated that the jurors
were not to surrender their honest convictions and that
the verdict must reflect the conscientious conviction of each
and everyone of them. Malizia claims that the statement
that the case “must be decided” was coercive. The charge
was given at 6:15 P.M. on Friday, February 15, 1974, on
the eve of a holiday, and the remark was perhaps a slip
better left unsaid. But it was not said after a disagree-
ment or deadlock on the part of the jury but before sub-
46
mission of the case to the jury. Taken into consideration
with other portions of the charge, this remark could hardly
be deemed coercive. As a matter of fact, the charge as a
whole was eminently fair to the defendant. See Nick v.
United States, 122 F.2d 660, 674 (8th Cir.), cert. denied,
314 U.S. 687 (1941); United States v. McNeil, 433 F.2d
1109 (D.C. Cir. 1969); United States v. Martinez, 446 F.2d
118, 119 (2d Cir.), cert. denied, 404 U.S. 944 (1972).
Affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.