Appendix — Hoffa v. United States

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 15,876

Unrrep States or America, Plaintiff-Appellee,

v.

James R. Horra, Defendant-Appellant.

No. 15,877

Unrrep States or AMERICA, Plaintiff-Appellee,

v.

THomas Ew N Parks, Defendant-Appellant.

No. 15,878

Unrrep States or AMERICA, Plaintiff-Appellee,

v.

Larry CanrrgRI,, Defendant-Appellant.

No. 15,879

Unrrep States or America, Plaintiff-Appellee,

v.

Ewrxd Kine, Defendant-Appellant.

Decided July 29, 1965.

Before Weick, Chief Judge, Mnaan and Cxon, Circuit

Judges. i

Weick, Chief Judge. Appellants were found guilty by a

jury in the District Court on charges of wilfully endeavor-

ing to influence, intimidate and impede petit jurors in the

2a

discharge of their duties, in violation of 18 U.S.C. § 1503.

The petit jurors had been summoned for jury service in

the trial of United States of America v. James R. Hoffa and

Commercial Carriers, Inc. (Criminal Case No. 13,241) in

the United States District Court for the Middle District

of Tennessee, Nashville Division. The latter case has been

referred to as the Test-Fleet case, and involved a two count

information charging violation of the Taft-Hartley Act

(29 U.S.C. § 186). It was tried before District Judge

William E. Miller of Nashville.

The unlawful endeavors which the Government’s evi-

dence tended to prove consisted of contacts through inter-

mediaries with acquaintances, friends or relatives of two

of the petit jurors and one venireman in an effort to in-

fluence their votes by bribery: Venireman James C. Tip-

pens reported to the trial judge on the second day of the

tral that his neighbor, Lawrence Medlin, had offered him

$10,000. in $100. bills to influence his vote. Judge Miller

excused Tippens from the jury.

The Government’s evidence tended to prove that en-

deavors were made to bribe the son of juror Gratin Fields

for the purpose of influencing his father; that contact was

1 Hoffa was convicted on Counts III and V of a five count indict-

ment; Parks and Campbell were convicted on Count III; and King

was convicted on Count V. Hoffa’s motion for judgment of ac-

quittal on Count II was granted; Hoffa and co-defendants, Dorf-

man and Tweel, were acquitted on Count IV.

Count I, which charged a conspiracy against Hoffa alone, was

severed before trial. The Court had transferred the case for trial to

Chattanooga in the Eastern Division. Defendant, Lawrence Medlin,

who was indicted on Count II with Hoffa, obtained a writ of man-

damus from this Court ordering the retransfer of his case to Nash-

ville. This had the effect of granting him a separate trial. Hoffa

was sentenced to a term of four years’ imprisonment and to pay

a fine of $5,000, on each count, the sentences to run consecutively.

Parks, Campbell and King were sentenced to three years’ imprison-

ment.

„

3a

made with the juror’s daughter for the same purpose; that

contacts were made with Tennessee State Patrolman James

Paschal, husband of juror, Mrs. James Paschal ; that prom-

ises were made to Patrolman Paschal to obtain a promotion

for him if he would influence his wife’s vote as a juror.

When these efforts were reported to District Judge Miller

he excused jurors Fields and Paschal and filled their places

with alternate jurors.

The trial of the Test-Fleet case lasted for about two-

months. It resulted in a hung jury.“ Judge Miller then

ordered that a grand jury be convened to investigate the

attempts to influence the petit jurors, which resulted in the

five count indictment in the present case. After entering

the order, Judge Miller recused himself from further con-

sideration of the case. District J udge Frank Gray, Jr.,

of Nashvlle, heard a number of preliminary matters, after

which he recused himself and the case was assigned for

trial to District Judge Frank Wilson. J udge Wilson trans-

ferred the case for trial from Nashville to Chattanooga.

It lasted six and one-half weeks.

The record and exhibits in this case are voluminous.

Almost every question which the ingenuity of counsel

could think of, was raised in the trial court.

In this Court Appellants have presented sixteen ques-

tions, subdivided into thirty-six parts. Counsel for both

parties were granted leave to file briefs much longer than

anthorized by our rules. Each side was allowed two hours

for oral arguments.

4a

Was THE GRAND Jury ImpROPERLY AND

ILLEGALLY IMPANELED?

A motion to dismiss the indictment was filed by Appellant

Hoffa and later joined in by the other Appellants in the

District Court, in which it was claimed that the grand jury

did not represent a fair cross-section of the community;

that the Jury Commissioner and the Clerk had delegated to

other persons their duty to select the names for the jury

box; and that the names in the jury box from which the

grand jury was selected had been suggested substantially

by United States officials, United States Postmasters, state

officials, bankers and employers, resulting in a substantial

discrimination against the defendants. Certain exhibits

were attached to the motion, purporting to show the names,

addresses and description of the economic and sociological

values and attitudes of the suggesters.

n the day set for the hearing, Hoffa filed an Offer of

Proof stating, among other things, that officers and officials

of federally supervised banks and Postmasters serving the

Middle District of Tennessee are, as a class, biased and

prejudiced against Negroes, Jews, Catholics and manual

or blue collar workers, and would not knowingly submit

their names for jury service; that bankers, as a class, are

also biased and prejudiced against persons not prompt in

the payment of their bills, against persons taking any active

part in the political or civic life of their communities, and

against persons having reputations as liberals or pro-

gressives.

Neither the motion nor the offer of proof were verified.

Neither stated in what manner nor by what means these

charges would be proved. :

Affidavits were filed by the Clerk of the District Court

and the Jury Commissioner. It appeared therefrom that

the ‘‘Suggester System,“ also referred to as Key Men

System,’’ was used to procure names for the grand jury.

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The Clerk sent a letter? to various persons residing in the

3 nited States District Court

Office of the Clerk

Middle District of Tennessee

Nashville 3

We plan to draw a jury in the near future and would appre-

ciate it if you would send us the names of some persons in your

community who are qualified for federal jury service.

For your guidance and information we quote the pertinent pro-

*

visions of the statute defining ‘Qualifications of Federal jurors.’

‘Any citizen of the United States who has attained the

age of twenty-one years and who resided for a period of one

year within the judicial district, is competent to serve as a

grand or petit juror unless—

(1) He has been convicted in a State or Federal court of

record of a crime punishable by imprisonment for more than

one year and his civil rights have not been restored by pardon

or amnesty.

(2) He is unable to read, write, speak, and understand the

English language.

(3) He is incapable, by reason of mental or physical in-

firmities to render efficient jury service.’

What we ask from you is a list of persons for this important

public service which will be a fair cross-section of the entire

population of your community, representing both men and women

of all races in all walks of life and having a variety of back-

grounds, occupations, callings, economic classifications, religious

and political affiliations, and other recognized groupings or classifi-

cations. N

For your convenience, we are enclosing a blank form on which

you may list the names, together with a self- address franked en-

velope.

We would appreciate it if you would send us your list of names

as soon as possible.

Very truly yours,

Andrew H. Mizell,

Clerk“

— Sal ne

6a

counties composing the Mddle District of Tennessee. The

Clerk’s affidavit stated how the suggesters were chosen.“

* Affidavit of Andrew H. Mizell:

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The suggesters are chosen because they are the persons who

would be most widely acquainted with persons of every back-

ground and more likely to return a fair cross-section of their

communities. Thus, while bankers and postmasters are used con-

siderably, it is because they are the very people most likely to

return a fair cross-section of their particular community.

„Among the persons I selected as suggesters for the Grand

Jury in question, were Negroes as well as White, females as well

as male, and working people as well as businessmen and bankers.

I have reviewed the list of suggesters submitted by defendants and

agree that this list includes the suggesters actually returning names

to me. The list does not include a number of other suggesters

to whom I wrote, however, because these suggesters returned no

names.

When these suggesters returned names of qualified persons,

I went over the list and prepared the names for insertion in the

jury box. I did not personally check the qualifications of every

person whose name was submitted, for it has been my experience

that the suggesters I and Mr. Climer pick do return only the

names of qualified persons and can be relied upon to do so. Thus,

I have observed the empaneling and swearing of many grand and

petit juries selected in this District in this manner and have noted

that practically every name drawn from the box has been that of

a qualified person.

In addition to the names I secured from suggesters, I selected,

on my own without advice from any judge or other Government

official, 15 to 20 names of persons I know to be qualified.

„When I had secured sufficient names, Mr. Climer and I met,

emptied the jury box, and in the presence of witnesses, each put

in 200 names, alternating in putting in one name at the time.

Immediately thereafter, we drew 100 names from the box and these

persons became the panel from which were selected the 23 persons

who made up the instant Grand Jury.

I made no effort to exclude any group from the jury box. On

the contrary, my every effort throughout was to secure a fair cross-

section of the community—the Middle District of Tennessee.

ANDREW H. MIZELL’’

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7a

The Jury Commissioner’s affidavit stated that he had

written for names of qualified jurors to the Jury Commis-

sioners for the Columbia and Cookeville Divisions of the

Middle District of Tennessee. In addition he wrote a letter,

identical in form to the letters sent by the Clerk, to a citizen

residing in each of the twelve counties of the Nashvlle

Division, excluding Wilson and Davidson Counties, request-

ing the names of persons from all walks of life, to serve

as jurors. Males and females were included in the list.

Many of the suggesters were known to him personally, and

many others were known to him by reputation. Upon re-

ceiving the lists he reviewed them and compiled the list

of names to be placed in the jury box. He added fifteen

or twenty names of persons residing in Wilson County,

who he knew were qualified. He met with the Clerk. Each

alternated in placing one name at a time in the jury box

until there were four hundred names in the box. They

drew one hundred names from the box, from which they

selected twenty-three persons who made up the grand jury.

Prior to the hearing District J udge Frank Gray, Jr.

entered an order establishing the sequence of issues to be

heard on the motion:

„1. Whether a suggester system for the selection of

prospective grand jurors is invalid, per se, so as to

invalidate actions of a grand jury so selected.

2. Whether a sufficient showing has been made to

authorized an inquiry whether the manner in which the

suggester system was used in selecting the present

grand jury was such as to invalidate the indictment.

‘*3. Whether the court failed to take proper pre-

cautions against seating grand jurors who may have

been influenced by publicity, and, if so, whether the

indictment is thereby invalidated. 1 :

4. Whether a sufficient showing has been made to

authorize an inquiry as to whether the grand jury was

biased and prejudiced by publicity.“

N nn

8a *

The defense subpoenaed the Clerk, the Jury Commis-

sioner and seventy-seven of the ninety-two suggesters listed

in their exhibit. At the hearing the Court heard oral argu-

ments from counsel for each defendant and for the Gov-

ernment. The Court called attention to his previous order

— and sought time after time to elicit from defense counsel

proffers of proof as to the names of witnesses and what

their testimony would be in support of the charges con-

tained in the motion. In this effort the Court was unsuc-

cessful. The most that could be secured was the statement

of counsel that the proof would come from the testimony

of the Clerk, the Jury Commissioner, and the seventy-seven

suggesters. Defense counsel had talked to only one sug-

gester at that time. The court would not permit their

interrogation because the defense had not established the

necessary foundation therefor.‘

The Court did permit proof to be offered on the charge

that the “ut pe seco ata jury box the name of a

. opinion denying the motion to dismiss the

indictment, the Court said:

„In the face of the specific caveat in the court’s order of July

18, 1963, defense counsel sought at the very outset of the hearing

to begin calling witnesses without offering any argument in sup-

port of their right to do so. Furthermore, the first witness offered

was the court clerk, one of the persons the defendants were accus-

x ing at least of abuse of discretion and at most of malfeasance in

office. Upon the court’s inquiry, defense counsel disclosed the

ä proposal to prove their entire case out of the mouths of the clerk,

the jury commissioner, and seventy-seven of the ninety-two sug-

gesters listed in the exhibit to their motion. No other witness

was then or thereafter offered; no other proof was offered by

affidavit or otherwise. On the naked, unsworn and tardy assertions

of the improbable proposition that all ‘these people

‘As indicated at the outset of this memorandum, this would

have been at best a wholesale open court discovery proceeding, at

worst an inquisition. The court could not have and did not

it it.

.

— as

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9a

man of Jewish faith, knowing that he was represented by

defense counsel Osborn and would likely be challenged for

cause. The evidence disclosed that this charge was wholly

withou®merit. The Clerk did not know that the prospective

juror was represented by Mr. Osborn.

The Suggester or Key Men System has been in extensive

use in many of the Circuits. The use of the system was

approved by the Supreme Court in Scales v. United States,

367 U.S. 203, 259 (1961) affirming 260 F.2d 21, 44-46 (C. A.

4, 1958), and by other Courts. Padgett v. Buxton-Smith

Mercantile Co., 283 F.2d 597 (C. A. 10, 1960) cert. denied

365 U.S. 828 (1961); Windom v. United States, 260 F.2d

384 (C.A. 10, 1958) ; Walker v. United States, 93 F.2d 383

(C.A. 8, 1937) cert. denied 303 U.S. 644 (1938); Umited

States v. Hoffa, 205 F.Supp. 710 (S.D. Fla., 1962) ; United

States v. McClure, 4 F.Supp. 668 (E.D. Pa., 1933).

The use of suggesters does not constitute a delegation

of authority. Walker v. U»ted States, supra.

While the purpose of using suggesters was to obtain

an impartial jury drawn from the names of persons rep-

resenting a cross-section of the community, we know of.

no requirement that the suggesters themselves be selected

on such a basis. Nor is it necessary that every jury con-

tain representatives of all the various classes and groups

in the community. But prospective jurors shall be selected

without systematic and intentional exclusion of any of

the groups. The means whereby this may be accomplished

rests within the sound discretion of the courts and their

officers guided by statutory provisions. Thiel v. Southern

Pacific Co., 328 U.S. 217 (1946).

Although we think it would have been good practice to

send questionnaires to the prospective grand jurors in-

quiring as to their qualifications, the failure to do so in our

judgment did not invalidate the panel. The Clerk and

Jury Commissioner remained in control. They reviewed

10a

the lists submitted by the suggesters and placed additional

names in the box. There was no proof offered that any of

the grand jurors chosen did not possess the statutory

qualifications. |

In the Report of the Judicial Conference Committee on

the operation of the Jury System, it is stated:

The key-man system is the most widely used and if

the key-men are selected with discretion and in view of

securing diversification, it is productive of generally

good results. Periodic letters to the key-men keep

the lists coming in so that there is a constant supply

of new names being added. A sample of such a letter

asking for a list is attached to Exhibit 3. The jury

commissioners may or may not use the same methods

as the clerks.’’ 26 F.R.D. 409, 470

The courts will not permit a full scale investigation to

be made of its jury panel until it is suspect. If this were

not so the trial of a criminal case could be diverted by

unsupported charges. Court officials, jurors, suggesters

and other persons could be subjected to lengthy and need-

less inquisitions which in the future might deter them from

rendering effective service to the courts.

In Windom v. United States, supra, Judge Murrah said

at page 385: |

„But the burden of making a showing that some

class was improperly excluded from the jury lies with

the defense. Frazier v. United States, 335 U.S. 497,

69 S. Ct. 201, 93 L.Ed. 187. We will not presume that

the key persons did not follow instructions .to recom-

mend persons who are fairly representative of the

whole population of their communities. Surely, some

showing of a disposition to discriminate is prerequisite

to a searching investigation. The court should not

be required to permit a full scale investigation of its

jury panel until it is suspect. *

lla

To the same effect are Padgett v. Buxton-Smith Mer-

cantile Co., supra; cf. Poliafico v. United States, 237 F.2d

97, 110 (C.A. 6, 1956) cert. denied 352 U.S. 1025; United

States v. Romano, 191 F.Supp. 772, 775-776 (D., Conn.

1961).

Distinct evidence in support of the motion must be

offered. Glasser v. United States, 315 U.S. 60, 87 (1942).

The evidence must be more than mere statements of coun-

sel of what they hope they will be able to prove. Frazier

v. United States, 335 U.S. 497, 503 (1948).

Appellants argue that the suggester system produced ex-

clusions; that the names of only four N egroes and two

Catholies were placed in the jury box when there should

have been twenty-five Negroes and Catholics’ to give them

proportionate representation according to Census figures;

that there were not enough blue collar wage earners; and

the names of only thirteen women were drawn, which were

insufficient. f

The Court found that the list of prospective grand jurors

actually contained the names of all the classes claimed to

have been excluded: This certainly does not prove system-

atic exclusion of cognizable elements in the community. It

is not required that there be a proportionate representa-

tion in the grand jury panel of all classes and religions.

It ig doubtful whether any system could be devised to ae-

complish this purpose. Swain v. Alabama, 380 U.S. 202

(1965) ; Hernandez v. Texas, 347 U.S. 475, 482 (1954) ; Cas-

sell v. Texas, 339 U.S. 282, 286-287 (1950); Fay v. New

York, 332 U.S. 261, 284-285, 291 (1947); Akins v. Texas,

325 U.S. 398, 403-404 (1945); Padgett v. Buxton-Smith

Mercantile Co., supra; United States v. Fujimoto, 102

F.Supp. 890, 894-895 (D.Haw. 1952).

It should be pointed out that Appellants’ analysis per-

tained only to the one hundred names drawn, and not

to the other three hundred names placed in the jury box;

—

*

12a

that the data contained in the analysis resulted from neigh-

borhood inquiry; that there were eight panel members

whose races were not disclosed; and that there were three

panel members whose religious preferences were not as-

certained. Without going into other discrepancies, we

are of the opinion that thé analysis falls far short of

making the requisite showing to require a full scale

investigation.

Nearly five months later (December 16, 1963) a delayed

motion for rehearing was filed by Appellant Campbell, -

substantially joined in by Hoffa, to which were attached

affidavits of three investigators, Polk, McMackin and

Ziegler, who had interviewed a number of suggesters in

September, 1963. It has not been explained why the filing

of the motion for rehearing was delayed. These affidavits,

together with the Govenment’s cross-examination of the

investigators in related cases involving the same grand

jury, were received in evidence by stipulation.

In the light of the cross-examination, the affidavits of

the investigators appear to be misleading. The four sug-

gesters interviewed by Polk told him that in every case

they followed the instructions contained in the letter from

the Clerk or Jury Commissioner. While Polk stated in his

affidavit that these suggesters gave some evidence as to

bias against Negroes, they all told him that prejudice

played no part in the performance of their duties as

suggesters. :

.

MeMackin interviewed seventeen suggesters. Nine out

of twelve suggesters sent in the names of one or more

Negroes. Three told him they did not. A couple told him

they did not remember. One told him it was none of his

business. As to the remainder, he did not know whether

they did or did not. On instructions from defense counsel

he did not interview any of the suggesters from the Nash-

13a

ville area (Davidson County) where more than sixty-one

per cent of the non-White population of the Middle District

of Tennessee over twenty-one years of age reside, and

where several Negroes serve as suggesters. The investiga-

tion was restricted to other counties in the Middle District

in which only eight per cent of the total population over

twenty-one years of age, consisted of non-White.

Ziegler interviewed nineteen suggesters. One refused to

comment. Five told him that they had secured a cross-

section of the community in which they resided. As to

whether the suggésters returned names of Negroes on their

lists, six out of twelve answered ‘yes’; six answered ‘no’.

The other five thought they returned names of N egroes,

or didn't remember. In most instances they answered

that they considered that they had secured a fair cross-

section of the community. They were personally acquainted

with the persons selected.

In our judgment District Judge ‘Wilson was justified in

denying the delayed motion. 5

Supreme Court cases have indicated methods used to

establish discrimination in the selection of jurors and to

make out a prima facie case.

In Hill v. Texas, 316 U.S. 400, 403 (1942) an assistant

district attorney for the county, who had lived in Dallas

County for twenty-seven or twenty-eight years and served

for sixteen years as a judge in the criminal court in which

Hill was convicted, testified that he never knew of a N egro

being called to serve on the grand jury. The district clerk

knew of no citations issued for N egroes to serve on the

grand jury. Three colored witnesses, who had lived in the

county from twenty-five to fifty years, testified that they

had never known of a Negro being called to serve on a

grand jury. Of 66,000 poll tax payers in the county, 8,000

were Negroes.

N

* 14a

See Arnold v. North Carolina, 376 U.S. 773 (1964), where

only one Negro served on grand jury in twenty-four years,

although Negroes comprised twenty-eight per cent of per-

sons on the tax records.

“In both of the cited cases the Supreme Court held that

a prima facie case was made.

No such proof as to discrimmation was proffered in the

Present case. It seems to us that if there had existed such

an outrageous discrimination against Negroes, Catholics,

Jews, blue collar workers, community civic leaders and

liberals or progressives as was claimed by the defense, it

would have been easy to show it in a place as heavily

populated as the Middle District.’ Not one Negro, Catholic,

Jew, working man, union leader, or other alleged dis-

criminatee, was called as a witness. Instead the defense

wanted to engage in a fishing expedition by calling seventy-

seven suggesters with whom they had no contacts at the

time, with only one exception.

Had evidence been proffered as to discrimination against

any cognizable group, a prima facie case might have been

made requiring the Government to go forward with rebuttal,

and justifying a full scale investigation by the court.

Hernandez x. Texas, supra. Until then the list was not

suspect.

Appellants further contend that Judge Gray in his voir

dire examination of the grand jurors made no effort to

determine if the members were biased against any of the

defendants. The record does not support this contention.

* Appellants claim in their brief that 13.2% of the population

over 21 years of age, in the Middle District of Tennessee, was

non-White, 12% Catholic, and 2% Jewish. There were many

manual or blue collar workers. There were labor unions.

4

15a

The Court made a preliminary statement to the venire-

men.“ The Court then read to the prospective grand jurors

the oath which they would be required to take. He asked

the questions set forth in the footnote.” After excusing

i)

6 The statement was in part as follows:

„It is perfectly right and proper that grand juries should

include those who keep up with events of current interest, read

newspapers, listen to radio broadcasts, and watch television. It

is not even improper for a grand juror to let his prior informa-

tion, however gained, help to guide him in taking part in an

investigation.

But it would not be proper—and I emphasize this—for a

grand juror to rely on information gained outside the grand jury

room in arriving at his decision whether or not to vote for a true

bill against any person, or to approach an investigation with his

mind made up about what result should be reached.

„Therefore, if any of you have read¢or heard of any alleged

violation of federal law that conceivably could come before you as

grand jurors, it would not be proper for you to serve unless you

the indictment is returned. A grand juror must decide only

whether or not¢he has seen and heard in his official investigation

sufficient evidence to justify a reasonable man in believing an

accused person is guilty of a crime. This is something more than

the reasonable suspicion that will justify an investigation and

something less than the moral certainty on which a petit jury acts.

™**Now, let me ask you a question. Does any one among you

believe that anything you have seen or heard about any alleged

federal crime, or crimes, has so impressed your mind that you

would have any difficulty in taking that oath without any mental

reservations whatsoever? If so, please raise your hand. (Indica-

tion in the negative.) ,

’ “The Court: No hands have been raised, which means to me

that all of you have indicated that you feel that you can fake

the oath that I have read to you without any mental reservations,

16a

one prospective juror because he might have difficulty mak-

ing an independent determination since he was acquainted

with persons involved in newspaper publicity, the jury was

sworn. 5

In our judgment the voir dire inquiry was sufficient. It

was not necessary that the Court furnish the jurors with

the names of each person who might be investigated and

direct specific inquiries as to bias and prejudice against

him.

Dp tHe TRIAAL Court Err IN DENYING THE

Morton to SuPpREss THE EVIDENCE OF

Epwarp G. Partrn?

Partin was Secretary-Treasurer and Business Manager

of Teamsters’ Local No. 5 in Baton Rouge, Louisiana. He

had held that position for twelve years. He had known

Hoffa closely for about five years.

The evidence sought to be suppressed was the iGftimony

of Partin at the trial which was directed chiefly at implicat-

ing Hoffa and Appellant King with the endeavors to bribe

the jurors in the Test-Fleet case.

that you can approach any investigation with an open mind, and

that. you can disregard any reports or rumors that you may have

heard and act only on the evidence that is presented to you in

the grand jury room. Is that correct? If not, please hold up your

hands. (Indication in the negative.)

„Now, let me ask you ome final question. Does any one of you

a know anything that would cause any reasonable person. to believe

that you would be prejudiced in any matter thet may

come before a federal grand jury? If so, please raise your hands.

(Indication in the negative.) |

„Do you know of anything that could cause anybody else, a

reasonable person to believe honestly that you would be prejudiced

on any matter coming before a federal grand jury! (Indication in

the negative.) ‘

“T think that you are qualified and the clerk will now administer

the oath to the grand jury.

17a

Partin testified, over the objections of the defendants,

as to conversations with Hoffa in the latter’s hotel room

in Nashville, at the start of and during the pendency of

the trial of that case, and also as to conversations with

Appellant King. No one else was present during these

conversations. The gist of Partin’s testimony was as

follows:

On the day before the trial started, Appellant King told

Partin that there was ‘‘a meeting set up on the jury that

night”’. Partin did not go to the meeting.

On that evening Hoffa motioned to Partin to come to his

room. Partin testified : :

He [Hoffa] told me he'd like for me to stick around

a day or two, that he might have one or two people for

me to call. He said they was going to get one juror or

try to get a few scattered jurors and take their

chances. ne

Before leaving Nashville for Baton Rouge, on October

23rd, Hoffa told Partin that when he returned he might

want him to pass something for him’’. Hoffa put his

hand behind his back and hit his rear pocket.“

Partin returned to Nashville on October 25th and re-

minded Hoffa that he might want him to pass something

for him. Hoffa replied: i

The dirty bastards went in and told the Judge

that his neighbor had offered him $10,000. We are

going to have to lay low for a few days.“

9 5 *

® The, selection of the jury started in the Test-Fleet case that

morning. When the Court adjourned for the day prospective juror

Tippens returned a telephone call made to him by his neighbor

Medlin. He met with Medlin who offered him $10,000. in $100

bills, to influence his vote as a juror. Tippens reported this to

the Presiding Judge, and was excused as a juror. .

<

4

18a

Partin had conversations with Appellant King on Octo-

ber 26th in which King informed him that one of the lady

jurors was married to a highway patrolman, whom he

would endeavor to contact. King said that he was ac-

quainted with a friend of the juror and would try to have

the friend talk to her to get her swayed toward Mr.

Hoffa. King said that the patrolman and his wife had

money, but they loved money and $10,000 was a lot of

money. King told Partin that he intended to circulate

in the neighborhood where the highway patrolmen hung

out and see if they knew anyone on the jury that they

could get to’’. King told Partin that the closest person

to the highway patrolman was deer hunting in Montana.

On October 29th Hoffa requested Partin to telephone

Billy Wade, an All-American football player from Nash-

ville, ‘‘to come into town and circulate around and see if

he knew anyone he could get to on the jury, and to come

into the court room and shake hands and mix up with the

defendants’’. Partin was unable to reach Wade. On that

same day, Hoffa told Partin, ‘‘I would pay $15,000 or

$20,000, Whatever it costs, to get to the jury“.

On October 30th King pointed out to Partin a woman

sitting in the courtroom, and said she was to speak to

juror Mrs. Paschal.

On November 4th Partin met Hoffa and King in a hall-

way of the hotel. Hoffa told Partin he was ‘‘raising Cain

at King, said he wasn’t doing what he told him to do’’.

He said that King keeps telling me he can get the patrol-

man butghe don’t get to him’’, and that ‘‘He keeps talking

2 d fumbling around. Later King told Partin

that ought the highway patrolman would go along and

that he Tac arranged to meet him the following Sunday at

midnight at a spring behind a farm. There was no such

meeting held that Sunday.

\e

ee eee eee

19a :

On November 7th Hoffa told Partin:

J have got the colored male juror [Fields] in my

hip pocket. One of my business agents Campbell came

into Nashville prior to the trial and took care of it.“

He ‘said the juror would not take any money but would

not go against his own people“. 7 f

Hoffa said:

„Our best bet is a hung jury unless we can get to

the foreman of the jury. If they have a hung jury,

it will be the same as an acquittal because they will

never try the case again.’’

On November 14th Partin was present during a conversa-

tion between Hoffa and King. He said Hoffa was on King

again about not making a contact like King told him he

would and Hoffa wanted some insurance“. On the same

day King told Partin that he was planning to meet the

patrolman (Paschal). Partin heard Hoffa call King a

stupid s. o. b. for thumbing around and not getting the

job done.“ On the following day Partin discussed with

King the contacts to be made with the patrolman .

On November 19th King related to Hoffa the details

concerning his meeting with Paschal. On the same day

Hoffa told Partin he was disturbed because the High-

® Appellant Campbell is a Negro and is the nephew of Appel-

lant Parks. Parks’ efforts were directed at bribery of the son

and contact with the daughter of the juror, Gratin Fields, who

was the only male Negro on the jury.

1 King and one Pitts did meet with Patrolman Paschal at mid-

night at a river spring. King offered Paschal a promotion if

he would speak to his wife who was on the jury. Paschal told

King he would speak to his wife. The Court on motion of the

Government, excused Mrs. Paschal from the jury on December 6,

;

~J2

20a

way Patrolman wouldn't take the money . . if he had

taken the money it would have pinned him down and he

couldn’t have backed up’’.

The ground of the motion to suppress was that the

Government had planted an informer (Partin) in the midst

of tie defendants and their counsel, which interfered with

their rights to the effective assistance of counsel in the

Test-Fleet case, and was in violation of the Fourth, Fifth

and Sixth Amendments to the Constitution.

The District Judge conducted an extensive hearing on

the motion.in the absence of the jury, at which a number

of witnesses testified. The witnesses called by the defense

included Partin, the attorneys for the Government, a spe-

cial Assistant to the Attorney General, the District At-

torney for the Ninth Judicial District in Louisiana, and his

Administrative Assistant, and a number of the attorneys

who represented Hoffa in the Test-Fleet case.

At the conclusion of the hearing the Court adopted

findings of fact and denied the motion to suppress the

evidence." These findings were supplemented in the

Gentlemen, the Court has overnight read all the cases that

were cited last evening including I find all but two of the cases that

are cited this mo in any of the memoranda and I have looked -

at those this morni And have read other cases which I do not

find cited in the memoranda. The Court is of the opinion that

the motion to suppress the testimony of the witness Mr. Partin

should be overruled, having observed the manner and demeanor of

the witness on the witness stand, and the testimony of the witnesses,

I would find that there has been no interference by the govern-

ment with any attorney-client relationship of any defendant in this

case.

, would further find that the government did not place this

witness Mr. Partin in the defendants’ midst or have anything to

do with placing him in their midst, rather that he was knowingly

and voluntarily placed in their midst by one of the defendants.’

„As the Court understands and interprets the law, there is no

basis for denying the government the use of this witness’ testimony

in this case.

21a

Court's memorandum denying the motion for a new

trial.

In substangsg the Court found from the evidence that

the Government did not place Partin in the midst of the

defendants, but that he was there by invitation of one of

the defendants (Hoffa). The Court further found that

there was no interference with the attorney-client relation-

ship of any defendant in the case.

The evidence at the hearing on the motion to suppress,

disclosed that shortly before the trial of the Test-Fleet

case Partin was in the East Baton Rouge Parish jail

on a state kidnapping charge. The charge grew out of a

12 The action of the Court in denying the motions of the defend-

ants to suppress the testimony of the witness Partin is com-

plained of in Grounds 41 and 42 of the motions for new trial. It

is contended that one of the findings of fact of the Court with

respect to the-motion to suppress was rendered incorrect by subse-

quent evidence in the case. It is contended that the telephone

transcriptions of the telephone calls between Partin and Hoffa

on October 8 and 18, 1962, established that the defendant Hoffa

did not invite Partin to Nashville. The telephone transcriptions

reflect that the defendant Hoffa agreed to an appointment to see

Partin in Nashville. Even if the defendant Hoffa did not initiate

the invitation of Partin to come to Nashville, but rather Partin

- solicited the invitation, this does not in any way alter the Court’s

finding that the Government did not place or keep Partin with the

defendant Hoffa. Neither does it in any way relate to or in any

way alter the Court's finding that there was no illegal interference

with the right of the defendant Hoffa to representation by counsel.

The Government requested of Partin only that he report informa-

tion of jury tampering or other illegal activity of which he became

aware. Partin voluntarily ished such information. He re-

mained in Nashville or returned to Nashville either at the request

2

family quarrel in which Partin assisted a friend, who was

the father, in kidnapping his own children from his sep-

arated wife. While in jail Partin requested a meeting with

the state prosecuting officials. He met with Daniels,

the Administrative Assistant to State District Attorney

Pitcher, and later with Pitcher, Daniels, Duffy, an Assistant

U.S. District Attorney, and Grimsley, an attorney in the

Criminal Division of the Department of Justice. Partin

informed them of an alleged plot by Hoffa to murder

Robert F. Kennedy, then Attorney General of*the United

States. At this meeting Pitcher told Partin that if the.

kidnapped children were returned unharmed he would be-

come eligiblé for bond, but so long as the children were

held his offense was non-bailable under Louisiana law.

Shortly thereafter the children were returned unharmed

and Partin was released on $5,000. bail.

After his release on bail, Partin met with Daniels at

the Holiday Inn in Baton Rouge. Daniels was conducting

an investigation as a state law enforcement cfficer. He had

not been asked to do so by the Federal Government.

Partin placed a number of telephone calls to different

people and recorded some of them on a recording device

furnished by Daniels. He recorded a call to Hoffa in

Washington, in which Partin requested a meeting with

Hoffa, and another one to Hoffa in New Jersey, in which

Hoffa agreed to meet Partin at the hotel in Nashville where

Hoffa intended to stay during the trial. These recorded

telephone calls were offered in evidence by the defense.

Grimsley did not ask Partin to call Hoffa. >

A few days thereafter Partin met with Grimsley, the

Department of Justice attorney, and Daniels in Atlanta.

After discussing other matters not pertaining to this case,

Grimsley asked Partin if he intended to meet with Hoffa

in Nashville.’ Upon being advised of the appointment,

Grimsley asked Partin to keep his ears and eyes open and

to report any attempts at witness intimidation or jury

23a

*

tampering, either to Grimsley or to Walter Sheridan, a

Special Consultant to the Attorney General. Grimsley

gave Partin Sheridan’s Nashville telephone number.

During the Test-Fleet trial Partin did telephone Sheridan

frequently and advised him concerning the plans to bribe

the jurors. Partin was present in the hotel on one occa-

sion during the Test-Fleet trial when defense counsel

Bufalino interviewed some truck drivers and prepared ques-

tions and answers which he asked the truck drivers to

memorize. Partin related this incident to Sheridan. There

was no proof that the testimony of the truck drivers was

transmitted to the Goverument.

Partin was in and out of Nashville a number of times

during the trial, looking after his own business.

N >

It is significant that all of the conversations between Par-

tin and Hoffa relative to jury tampering, which were sought

to be suppressed, took place in the absence of counsel and

with no witnesses present. The same is true with respect

to Partin’s conversations with Hoffa and King, and with

King alone. Partin. testified as to no communication be-

tween the defendants and their attorneys.

The credibility of the witnesses on the motion to sup-

press was for the District Judge to determine. United

States v. Vita, 294 F.2d 524, 528 (C.A. 2, 1961) cert. denied

369 U.S. 823. "

In our judgment the findings of fact of the District

Judge on the motion to suppress, as supplemented by his

memorandum on the motion for a new trial, were supported

by substantial evidence and are not clearly erroneous.

United States v. McGavic, 337 F.2d 317, 319 (C.A. 6, 1964)

cert, dented 380 U.S. 933; Villano v. United States, 310 F.2d

680 (C.A. 10, 1962); United States v. Page, 302 F.2d 81

(C.A. 9, 1962) ; United States v. Mathis; 298 F. 2d 790 (C.A.

6, 1962) cert. denied 370 U.S. 947; Biggs v. United States,

246 F.2d 40 (C. A. 6, 1957) cert. denied 355 U.S. 922.

24a

Appellants rely on Caldwell v. United States, 205 F. 2d

879 (C. A. D. C. 1953) cert. denied 349 U.S. 930 and Coplon

v. United States, 191 F. 2d 749 (C. A. D. C. 1951) cert. denied

342 U.S. 926. We think both of these cases are inapposite.

In Caldwell the Government informer was present in the

defense camp during the trial in which the conviction was

‘obtained. He was hired by the Government to work in the

defense camp and regularly attended meetings between de-

fense counsel and witnesses. He reported many matters

connected with the impending trial. In that case there was

an interference with the attorney-client relationship. The

Court recognized, however, that a surreptitious police ef-

fort ‘‘to get evidence“ was proper and could not be ex-

cluded from consideration. Id. at 881 fn. 10. In Coplon

the Government intercepted communications between de-

fendant and her attorney. a

We doubt that the relaying of the small amount of in-

formation relative to the truck drivers had any effect on the

validity of the Test-Fleet trial. Cf. United States v. Lebron,

22 F. 2d 531 (C. A. 2, 1955) cert. denied 350 U.S. 876; United

States ex rel. Cooper v. Denno, 221 F.2d 626 (C. A. 2, 1955)

cert. denied 349 U.S. 968. Partin was not asked to testify

as to truck drivers’ statements in the present trial. There

was no proof that he had read the statements or knew whet

was in them.

But we are not called upon in this case to determine the

effect of Partin’s activities on the Test-Fleet trial. The

present trial for jury tampering involved an entirely dif-

ferent and unrelated offense. This also distinguishes Cald- .

well and Coplon, which involved the effect of illegality on

the first trials. ;

The attorney-client relationship would offer no shield to

either client or attorney if the client had been engaged in

a plan to commit a crime in the future. Clark v. United

States, 289 U.S. 1, 15 (1933); Sawyer v. Barézak, 229 F. 2d

805, 809 (C. A. 7, 1956) cert. denied 351 U. S. 966, rehearing

*

25a

denied 352 U.S. 860; United States v. Weinberg, 226 F. 2d

161, 172 (C. A. 3, 1955) cert. denied 350 U.S. 933.

Appellants urge that the testimony of Partin should

have been suppressed because it was illegally. obtained,

being ‘‘the ill-gotten ‘fruit of the poisoned tree’’’. They

cite Wong Sun v. United States, 371 U.S. 471 (1963);

Nardone v. United States, 308 U.S. 338 (1939); Silver-

thorne Lumber Co. v. United States, 251 U.S. 385 (1920).

They state that this sanction is necessary to deter the

Government from engaging in an unconstitutional invasion

of the right to counsel.

But we have pointed out that there was no invasion

by the Government of the defendants’ right to counsel.

Even if the evidence were tainted (which it was not), it

could only affect the validity of the Test-Fleet trial and

not a subsequent trial for a different offense. In Caldwell

the Court quoted from Coplon to the effect that Government

interception of communications between a defendant and

his attorney— N

„4. . . invalidates the trial at which it occurred and

requires a verdict of guilty therein to be set aside, re-

gardless of whether prejudice was shown to have re-

sulted from the denial.’’ Caldwell v. United States,

supra, at 881. 9 2

In Coplon the Court directed a new trial at which the ac-

cused can be free of surreptitious interception ...’’ Id.

at page 760. This indicates rather clearly that the Court

did not regard the interception as preventing a retrial of

the case. The same is true in Caldwell where a new trial

was ordered.

In Martin v. United States, 335 F.2d 945 (C. A. 9, 1964)

and Umited States v. Guerra, 334 F.2d 138 (C.A. 2, 1964)

cert. denied 379 U.S. 936, the Courts held that illegal con-

duet occurring at the first trial did not taint all subsequent

proceedings. United States v. McGavic, supra; 883 v.

26a

United States, 330 F.2d 535 (C. A. 5, 1964) cert. denied 379

U.S. 916; Burke v. United States, 328 F.2d 399 (C. A. 1,

1964) cert. denied 379 U.S. 849.

Appellants argue that the evidence was obtained by fraud

and artifice. Even if true, this would not render it inadmis-

sible. Lopez v. United States, 373 U.S. 427 (1963) ; United

States v. Thomas, 303 F.2d 561 (C.A. 6, 1962); Wellman v.

United States, 227 F.2d 757, 770 (C. A. 6, 1955) rev’d on

other grounds, 354 U.S. 931.

In Olmstead v. United States, 277 U.S. 438, 468 (1928) the

Court stated that evidence obtained by the use of informers

‘thas always been received“.

The testimony of Partin sought to be suppressed related

not to trial strategy inthe Test-Fleet case, but to illegal en-

deavors to bribe or influence jurors. Informing the Gov-

ernment of the existence of such evidence did not interfere -

with the rights of Aopeliants to the effective assistance

of counsel. They had no lawful right to engage in such

conduct, either with or without the assistance of counsel.

There was no evidence here that counsel knew anything

about unlawful endeavors.

Nf Inconsistent STATEMENTS oF WITNESSES

The fact that a witness may have made prior sworn or

unsworn statements, inconsistent with his testimony at the

trial, does not require the exclusion of his testimony.

In the present case witnesses were cross-examined exten-

sively by the defense, not only concerning alleged prior in-

consistent statements but also concerning their motives. In

particular Partin was cross-exartined at great length con-

cerning many incidents which took place during his life, ih-

cluding his taking the Fifth Amendment before the Gran

Jury, his criminal record, and the pending untried charge

against him. The jury was fully informed as to his record.

The credibility of the witnesses was for the jury to de- *

termine. United States v. Avites, 274 F. 2d 179 (C. A. 2, 1960)

*

27a

cert, demed 362 U.S. 974, 362 U.S. 982, rehearing denied

363 U.S. 858; United States v. Reina, 242 F. 2d 302, 307 (C. A.

2, 1957); Henderson v. United States, 218 F.2d 14, 17 (C. A.

6, 1955) cert. dented 349 U.S. 920, rehearing denied 349 U.S.

969.

The jury could also consider the alleged threats to a

witness. Enriquez v. United States, 314 F.2d 703 (C.A. 9,

1963); Nichols v. United States, 276 F.2d 147, 148 (C. A. 6;

1960) cert. denied 364 U.S. 815.

SURVEILLANCE

Appellants contend that they were denied the effective

assistance of counsel because of surveillance conducted by

the Government during the course of the trial. The trouble

is that the claim is not supported by the evidence.

The trial judge conducted a hearing on this matter at the

close of the trial. The defense called a number of witnesses

at the hearing, including agents of the F.B.I, attorneys for

the defendants, and one, Bernard B. Spindel, an electronics

expert employed by one of the defendants, who specialized

in detection, listening and monitoring devices. The hearing

consumed two full trial days, and is contained in two hun-

dred pages of the record.

The trial judge found that the evidence failed to estab-

lish any surveillance by Government agents, of the defend-

ants, their attorneys or witnesses, or any interference with

the defendants and their counsel.

In his memorandum denying the motion for a new trial,

the trial judge pointed out that:

„The only surveillance shown by the record was (1)

observations made by the F. B. I. during the period prior

to the completion of the selection of the jury of four

individuals (George E. Hix,/John Cleveland, William

A. Test, and Charles L. O’Brien), who were neither

parties nor attorneys, nor witnesses in the case but

28a

£ —

were connected with the Teamsters organization; (2)

the surveillance by the F. B. I. of one Bernard Spindel,

a person having a reputation in the field of telephonic

and electronic interceptions who came to Chattanooga

from New York during the trial; and (3) surveillance

of the F.B.I. by said Spindel on behalf of the defense

by interception of F.B.I radio communications.“

An examination of the record convinces us that these

findings of fact of the District Judge were supported by

substantial evidence and are not clearly erroneous.

The time for conducting the hearing was within the dis-

cretion of the Judge. We find no abuse of discretion. -

>

Morton ror ConTINvANCE or TRIAL on ACCOUNT OF

NeEwspPaPer PuBLicrry

The District Court ordered transfer of the case for trial

to Chattanooga on account of the newspaper publicity in

Nashville. A motion for continuance was made on account

of newspaper publicity in Chattanooga.

The newspaper publicity was not all adverse to Hoffa.

Some of it contained statements made on alf of Hoffa

by his own counsel. —

The Court found that the newspaper publicity did not

have prejudicial context; that most of it did not relate to

the issues of the case; and that some of it related to pre-

trial procedures and trial preparations.

The voir dire examination of the prospective jurors con-

sumed about five days. They were questioned at great

length by counsel for the defendants. The examination did

not disclose that the prospective jurors had been influenced

by newspaper publicity.

The matter of continuance rested within the sound dis-

cretion of the trial judge. We find no abuse of discretion

in the denial of the motion for a continuance.

wy ‘ a”

*

—

—

5 293

Appellants further complained about the number of

Deputy United States Marshals: attending the trial. They

were dressed in plain clothes. After the jury was empaneled

the Court limited the number to four. The Court had the

right to provide for the presence of Deputy United States

Marshals for the protection of witnesses, parties, jurors,

and to insure court room decorum. This involved a dis-

cretionary matter, which we do not find was abused.

Was THE Testimony or Prospecttve Juror Tirrens Wir

REsPECT To THE Bripery Orrer Mave To Hm ET

Ml INADMISSIBLE aS Hearsay Evipence?

Count II of the indictment charged Medlin as a principal,

and Hoffa as an aider and abettor, in offering the bribe of

$10,000 to prospective juror Tippens if he would vote for

acquittal of Hoffa in the Test-Fleet case. :

As before stated, Medlin was granted a separate trial

when this Court, by writ of mandamus, ordered his case

retransferred to Nashville. The case proceeded against

Hoffa alone on Count II.

Tippens had been seated in the jury box as jurqh No. 12

in the Test-Fleet case and had been passed by the Govern-

ment.

The Court in the present case would not allow Tippens,

who was called as a witness by the Government, to testify

as to the content of his conversation with Medlin, in the ab-

sence of Hoffa, which he ruled was inadmissible. The

content was proffered by the Government. Tippens was

allowed to testify only as to the fact of the conversation

and the matter of any report which he made to Judge

Miller (the trial judge in the Test-Fleet case) which would

be received only insofar a8 the same might or might not

tend to corroborate Partin’s testimony as to alleged state-

ments made by Hoffa to Partin.

The Court permitted the Government to read to the jury,

as a court record, the transcript of a statement made by

*

30a

Judge Miller at a conference in his chambers in the Test-

Fleet case, in which the judge advised Hoffa and his at-

torneys and the attorneys for the Government, of the sub-

stance of Tippen's report, concerning Medlin’s activities.

The Court ruled that the evidence could be considered only

as it might tend to corroborate Partin’s testimony.

~ Appellant’s position is that this evidence was pure hear-

say and inadmissible for any purpose against any defend-

ant, and that it was prejudicial error for the court to ad-

mit it.

If Medlin had been tried with Hoffa on Count II, the

evidence would certainly have been admissible against Med-

lin. If Medlin had died or was unavailable for trial, the

Government could still proceed against Hoffa alone as an

aider or abettor. The charge against Hoffa, as an aider

and abettor, was not expiated by reason of the inability of

the Government to proceed in the same case against Medlin.

Before Hoffa could be convicted as an aider and abettor,

however, it was necessary for the Government to prove that

the principal, Medlin, committed the crime. Shuttlesworth

v. Birmingham, 373 U.S. 262, 265 (1963) ; Hendrix v. United

States, 327 F. 2d 971, 975 (C. A. 5, 1964) ; Edwards v. United

States, 286 F.2d 681 (C.A. 5, 1960); Karrell v. United

States, 181 F.2d 981 (C. A. 9, 1950).

The only way open for the Government to prove that a

crime had been committed was by the testimony of Tippens,

who was the recipient of the bribe offer, as no witnesses

were present when the bribery was attempted. Bribery

attempts ure not ordinarily made in public.

The corpus delicti of the crime was the offering of the

bribe by Medlin to the juror Tippens. It would not, in our

judgment, violate the hearsay evidence rule for the Govern-

ment to prove the corpus delicti by having Tippens narrate

the facts concerning the crime committed by Medlin, which

necessarily had to include his conversation with Medlin.

—

rr

31a

The proof of the corpus delicti did not implicate any of

the defendants.

After establishing that a crime had been committed, the

Government had the burden to connect Hoffa with it as an

aider and abettor. This the Government endeavored to do

by the testimony of Partin concerning the.statements made

to him by Hoffa shortly prior to and during the course of

the Test-Fleet trial, from which the jury might draw in-

ferences as to Hoffa’s participation in the crime. These

statements were not only admissible as to Count II, but also

as to Counts III, IV and V. They were probative evidence

of his intent, plan and design. We realize that Hoffa, when

called as a witness, denied the statements attributed to him

by Partin; bat it was for the jury to decide whether to

believe Hoffa or Partin.

Thus the testimony of Tippens was admissible as K

dence to establish that a crime had been committed. It was

also admissible for the purpose stated by the District

Judge, namely, insofar as it might or might not tend to

corroborate the testimony of Partin as to the alleged state-

ments made to him by Hoffa. Considerable latitude must

be allowed in the admission of corroborative evidence. 28

C.J.S. Witnesses, § 648.

We think the District Court erred in restricting the Gov-

ernment’s proof. The error resulted in a dismissal of

Count II of the indictment. Since the error was favorable

to Hoffa, he cannot complain.

It follows that inasmuch as the proof admitted was less

than what the Government was entitled to present, there

was no error in admitting the limited ae

ConsPrracy

Appellants complain about the trial court’s instructions

to the jury, which were given from time to time during the

progress of the trial in connection with the introduetion of

r>>

—

*

a

— —— ; ae

32a

evidence of out-of-court statements of some of the defend-

ants and others who, the Government’s proof tended to

show, were jointly engaged in the commission of the bribery

endeavors. These instructions were on the subjects of con-

spiracy and principal and agent. It is argued that since

Count I of the indictment charging conspiracy was severed

by order of the Court, evidence of a conspiracy in connec-

tion with the proof of the substantive offenses was inad-

missible and that it was prejudicial error for the Court to

define that term to the jury.

The trial judge submitted to the jury only the substan-

tive offenses charged in the indictment. He did not sub-

mit the crime of conspiracy, nor tell the jury that con-

spiracy was a separate offense.

Even though Congress has created a separate crime of

conspiracy, it is settled that joimt participators in the com-

mission of the substantive offenses may be denominated as

conspirators. Kumpe v. United States, 250 F.2d 125 (C.A.

5, 1957). The conspiracy may be shown as an evidentiary

fact to prove participation in the substantive crime. 16

Am. Jur. 2d, Conspiracy, § 38, p. 147 (1964).

It was the function of the Court to define the term ‘‘con-

spifacy’’ and to instruct the jury as to the circumstances

under which the out-of-court statements were admissible.

In our judgment the Court’s definition of co iracy was

correct. He further instructed the jury that they could con-

sider an out-of-court statement only as to the particular de-

fendant who made the statement, until and unless the jury

was satisfied from other evidence in the case that the de-

fendant making the statement was a co-conspirator of one

or more of the other defendants, in which event the jury

could consider such evidence against any other defendant

shown by such other evidence to have been a co-conspira-

tor. The Court made it clear that the other evidence could

not consist of hearsay declarations. The Court also in-

structed the jury that statements made by an agent within

>

’ 33a

the scope of his authority were admissible not only against

the agent but also against his principal.

Appellants contend that the Court should have deter-

mined as a matter of law whether there was proof aliunde

of joint conspiracy instead of submitting it to the jury.

They rely on Carbo v. United States, 314 F.2d 718 (C. A.

9, 1963) cert. denied 377 U.S. 953, and United States v.

Dennis, 183 F. 2d 201 (C. A. 2, 1950) aff’d 341 U.S. 494. The

Court submitted the factual issue to the jury rather than

determine it as a matter of law. United States v. Dorsey,

290 F. 2d 893 (C.A. 6, 1961) cert. denied 368 U.S. 825; Con-

tinental Baking Co. v. United States, 281 F. 2d 137 (C. A. 6,

1960) ; Schmeller v. United States, 143 F.2d 544 (C. A. 6,

1944).

We think there was sufficient evidence to make out a prima

facie case linking Appellants with the conspiracy and the

Court would have been justified in so holding in accordance

with the rule of Carbo and Dennis. Submitting the issue

to the jury instead of determining it as a matter of law was

more favorable to the Appellants and they were not

prejudiced thereby. United States v. Stromberg, 268 F.2d

256 (C.A. 2, 1959) cert. denied 361 U.S. 863. There was

substantial evidence that the out-of-court statements were

made in furtherance of the conspiracy.

The Court’s instructions, in our judgment, properly

limited the jury’s consideration of the evidence. He re-

peated them on several occasions and referred to them many

times as the evidence was offered. The Court further

charged the jury that—

„Each defendant is entitled to have his case de-

termined from his own acts and statements, and from

other evidence in the case which may be applicable

to him, or be admitted by the Court as to him’? =

Only three counts of the indictment were submitted to

the jury. The jury returned a not guilty verdict on Count

34a

IV and guilty verdicts on Counts III and V. We think

that the jury understood the Court’s instructions and was

not confused or misled by them.

Since the Court had repeated or referred to his instruc-

tions relative to the out-of-court statements many times

during the trial, it was not necessary for him to_advert

to them again in his final instructions to the jury.

JOINDER OF OFFENSES AND DEFENDANTS

Appellants contend that there was a misjoinder of of-

fenses and defendants in the indictment which operated to

their prejudice during the trial, and that the Court erred in

denying their motions for severance.

Joinder of offenses and defendants is governed by Rule

8 of the Federal Rules of Criminal Procedure. Rule 8(a)

relates to joinder of offenses. It authorizes joinder—

. . if the offenses charged. .. are of the same or

similar character or are based on. . . two or more acts

or transactions connected together or constituting parts

of a common scheme or plan.

Counts II, III and V charged offenses of the same char-

acter, namely, endeavors to influence different jurors in the

Test-Fleet case, in which only Hoffa was on trial. Count

IV alleged an offense of similar character, namely, to ob-

struct justice in that trial. The obstruction of justice re-

lated to activities concerning a juror.

Hoffa was named in all counts. He was the only de-

fendant on trial under Count II. In addition to Hoffa,

Campbell and Parks were named in Count III, Dorfman

and Tweel in Count IV, and King in Count V. All four

counts involved the violation of the same statute, 18 U.S.C.

1503. The joinder of offenses, in our opinion, came clearly

within the provisions of Rule 8(a). United States v.

Koury, 319 F.2d 75 (C.A. 6, 1963).

F

35a

Castellini v. United States, 64 F.2d 636 (C.A. 6, 1933),

relied on by Appellants, is not in point. It was decided

prior to the adoption of the Federal Rules of Criminal

Procedure and involved a statute which did not authorize

consolidation of counts involving different defendants.

(Id. 636, 637, 721). It was distinguished in Ross v. United

States, 197 F.2d 660 (C.A. 6, 1952) cert. denied 344 U.S.

832.

Rule 8(b) authorizes joinder of defendants—

. . . if they are alleged to have participated . . in

the same series of acts or transactions constituting an

offense or offenses.

They] may be charged in one or more counts to-

gether or separately and all of the defendants need

not be charged in each count.

It seems to us that the acts of the defendants were cer-

tainly connected, Kivette v. United States, 230 F.2d 749

(C.A. 5, 1956) cert. denied 355 U.S. 935, or factually re-

lated, Williamson v. United States, 310 F.2d 192 (C.A. 9,

1962). They all concerned endeavors to influence jurors

in the Test-Fleet trial. They were all committed in the

same locality and during the course of that trial. They all

had a common objective, namely, to prevent a guilty ver-

dict against Hoffa.

The fact that evidence may be admissible against one de-

fendant, but not against others does not require separate

trials. Such a situation is usually present in joint trials.

Rizzo v. United States, 304 F.2d 810 (C. A. 8, 1962) cert.

denied 371 U.S. 890. g

In passing upon the various motions for severance, the

District Court was required to exercise its discretion. We

do not find that it was abused or that defendants were

prejudiced by the denial] of those motions. Opper v. United

States, 348 U.S. 84, 95 (1954).

36a

TRR ALLEGED Fraup on THE GRAND JURY

Appellants contend that the Government perpetrated a

fraud on the Grand Jury by subpoenaing Partin and his

claiming that answering questions would incriminate him.

They argue that the indictment should have been dismissed

or quashed. The evidence does not support this charge.

It should be noted that after receipt of the subpoena,

Partin took up the matter with one of Hoffa’s attorneys,

Bufalino, who advised him to take the Fifth Amendment,

and instructed him how to do it. He also discussed the

matter with a Nashville lawyer, to whom he had been re-

ferred by Bufalino, and who gave him the same advice.

There was no evidence that Partin had been instructed by

the Government to claim his constitutional privilege. Partin

testified that he acted on the instructions of Bufalino.

The Government further states that Partin was not the

only witness who toek the Fifth Amendment. Fourteen

other witnesses did so. It offered to permit in camera in-

spection of the Grand Jury transcript by the Court to sub-

stantiate this point.

We cannot assume improper conduct on the part of Gov-

ernment agents in the absence of evidence. Partin had the

constitutional right to invoke the Fifth Amendment.

Even though he had been acting as a Government in-

former, the Grand Jury could have indicted him for his

activities in connection with the offense charged in Count

The Government was not obligated to call Partin as a

witness before the Grand Jury, much less to persuade him

to testify, even assuming that it might have been able

to do so.

Comprtrency oF Mvipence To Warrant INDICTMENT

It is further contended that without the testimony of

Partin there was no competent evidence before the Grand

37a

Jury to support the indictment of Hoffa. This would not

justify quashing the indictment. Martin v. United States,

335 F. 2d 945 (C. A. 9, 1964). Hearsay evidence is sufficient.

Costello v. United States, 350 U.S. 359 (1956).

Driscrosunz or GnaxpD Jury MINuTEs

We find nothing irregular in the limited disclosure of

Grand Jury minutes to the Special Consultant to the Attor-

ney General and the agents of the F., B. I. who were working

on the case. Fed. R. Crim. P. 6(o).

If the disclosures were unauthorized, any violators of the

Rule could be punished for contempt, but dismissal of the

indictment would not be justified. United States v. United

States District Court, 238 F. 2 713, 721.722 (C. A. 4, 1956)

cert. denied 352 U.S. 981.

Surrictency or INpICTMENT

We think the indictment charging Hoffa as an aider and

abettor was sufficiently definite. It was not necessary to

particularize the acts constituting the aiding and abetting.

One who aids and abets in the commission of a crime is just

as guilty as the principal. The indictment did describe the

principal offenses, which is all that was necessary. Coffin

v. United States, 156 U.S. 432 (1895); United States v.

Simmons, 96 U.S. 360 (1877); Ellis v. United States, 321

F. 2d 931 (C. A. 9, 1963).

*

Propuction or Granp Jury Minutes

Appellants contend that the District Court erred in not

ordering the production of the Grand J ury minutes contain-

ing the testimony of the witness Partin, which they desired

to use for impeachment purposes in connection with their

cross-examination.

On direct examination of Partin, no questions were

asked of him concerning his tegtimony before the Grand

+

38a

Jury. The defense brought out on cross-examination the

fact that Partin had appeared before the Grand Jury and

refused to answer questions on the ground of self-incrimina-

tion. . a

It is claimed that Partin’s invoking the privilege against

self-incrimination before the Grand Jury was inconsistent

with the fact that he testified at the trial and therefore the

minutes should have been furnished to the defense for im-

peachment purposes.

When the question was presented, the District Court re-

quired the production of the Grand Jury minutes for in

camera inspection. The Court declared a recess and read

the transcript. He then determined from his in camera

inspection that the minutes were not subject to production.

We have read the transcript and are of the same opinion.

There was no inconsistency in the testimony of Partin

on the subject of the Fifth Amendment. He admitted on

cross-examination that he had invoked the privilege against

self-incrimination before the Grand Jury. It was not neces-

sary to introduce the Grand Jury minutes to prove the

same thing which was already admitted and was before the

jury. Admitting the transcript would be merely cumu-

lative evidence on a matter which was not in dispute.

Invoking the constitutional privilege against self-incrimi-

ation before a Grand Jury does not give rise to an infer-

ence that the witness has done something wrong or that he

is guilty of an offense. Grunewald v. United States, 353

U.S. 391 (1957). :

It is debatable whether the Court should have allowed any

cross-examination relative to the witness’ taking the Fifth

Amendment. In permitting cross-examination on the sub-

ject, the Court certainly accorded the defendants every-

thing to which they were entitled.

When the Court determined that there was no incon-

sistency, he was not obliged to turn over the Grand Jury

4 °

39a

minutes to the defense. United States v. Keegan, 331 F.2d

257 (C. A. 7, 1964), cert. denied, 379 U.S. 828; United States

v. Giampa, 290 F. 2d 83 (C. A. 2, 1961).

We find nothing irregular or prejudicial in the fact that

Appellants Parks, Campbell and King were subpoenaed

before the Grand Jury. No claim is made that they were

not advised as to their rights. United States v. Annunziato,

293 F. 2d 373 (C. A. 2, 1961) cert. denied 368 U.S. 919.

~

AR tits Canty et SUE AIR Oe ene ee LA wo a

0

SUFFICIENCY or THE EymRNCR To Support

Convictions or Horra anp CAMPBELL

Appellants contend that giving full credence to Partin’s

testimony and the other evidence in the case, it was insuffi-

cient to convict Hoffa and Campbell on Count III of the

Indictment. We do not agree.

——

— —ůꝛ— —

ee

In determining whether the motions for judgments of ac-

quittal should have been granted, we are required to con-

sider the evidence in the light most favorable to the Gov-

; ernment. United States v. Decker, 304 F.2d 702, 705 (C. A.

ö 6, 1962). 1

There can be no question but that endeavors were made

i to tamper or bribe, not merely one juror, but at least three

of the jurors in the Test-Fleet case. A number of persons

participated in the illegal acts. The result of the trial was

a hung jury.“ The question here is whether Hoffa and

Campbell were linked with the endeavors by sufficient

evidence.

(A) Hoffa

Hoffa was the only defendant in the Test-Fleet case. He

was the only person who could possibly benefit from the

jury-tampering activities. The obvious purpose of the

activities was to prevent a verdict of guilty. Hoffa thus

had ‘‘a stake in the venture. Direct Sales Co. v. United

States, 319 U.S. 703, 713 (1943). »

“

40a »

2 .

Hoffa was most certainly linked with the illegal activities

by the testimony of Partin, which we have heretofore de-

tailed. The statements of Hoffa to Partin were made

during the progress of the Test-Fleet trial, when the un-

lawful acts were being committed. These statements, if they

are to be believed, indicated much more than mere knowl-

edge on the part of Hoffa as to what was going on.

It was for the jury to decide whether to believe Hoffa or

Partin. In so doing, the jury had the right to consider all

of the evidence in the case, including inferences properly

deducible therefrom.

We think that the jury could reasonably have concluded

from the evidence that the large scale endeavors at jury

tampering were not brought about by spontaneous action of

the other participants who derived no benefits therefrom

and were risking criminal prosecution; and that the

endeavors resulted from instigation, careful planning and

agreement in which Hoffa was an active participant.

(B) Campbell |

Campbell was a business agent of Local 299, a Teamsters

Union in Detroit. He was a nephew of Appellant Parks.

The Government claimed that Campbell was the inter-

mediary between Hoffa and Parks.

Partin testified that Hoffa told him that he (Hoffa) had

the Negro juror Fields in his hip pocket, and that Camp- |

bell came to Nashville and took care of it.

The Government concedes that this statement may not be

considered unless Campbell was connected with the con-

spiracy by other evidence.

Parks was connected as an active participant in the

offense by positive evidence of eye witnesses. Parks told

Carl Fields, son of the juror Gratin Fields, that he needed

certain information from Carl about his father because he

had to make a call to Louisville by nine o’clock. This was

4la

admissible as an exception to the hearsay rule, because it

was a statement as to Parks’ intent to do an act, as evi-

dence of the probable doing of it. Mutual Life Ins. Co. v.

Hillmon, 145 U. S. 285 (1892); Rogers v. United States, 334

F. 2d 83 (C. A. 5, 1964).

Campbell had left his home in Detroit for Louisville

about two days before the commencement of the Test-Fleet

trial. During October and November, 1962, he remained in

Louisville for about twenty-eight days, staying at Mrs.

Brown’s Guest House. Parks came to Louisville once or

twice during this time and met Campbell. Campbell told

Mrs. Brown that he ‘‘might have to go to Nashville, and if

so he would return over the weekend’’.

A lady companion who testified that she was with Camp-

bell on a daily basis, said that they were both relaxing and

she did not observe him doing any work. He told her

that his boss was in trouble’’.

Parks called Campbell on the telephone from Nashville

the night before the trial started. Shortly thereafter,

which was past midnight in Detroit, Campbell called Hoffa’s

residence in Detroit twice from a pay telephone in Louis-

ville, paying cash for the call although he had a Union

credit card. Ten minutes after the second telephone call,

Campbell received a telephone call at the same pay station,

which was made from a pay station in Detroit near Hoffa’s

residence, and which was charged to the credit card of

Local 299. After that call had been completed, a call was

made from the same pay station in Detroit to Hoffa’s room

in a Nashville hotel. That evening Campbell called Parks

in Nashville and placed calls for him on each of the follow-

ing two days from pay telephones.

During an eleven day period between October 22nd and

November 14th, Campbell called Parks fifteen times from

Louisville and twice from Detroit. Eleven of the calls were

from phone booths in Louisville and one from a pay e.

All twelve calls were paid by Campbell in cash. Campbell

—

—— 5

*

. 42a

received two telephone calls at pay telephones in Louisville

from pay telephones in Detroit, and shortly thereafter calls

were made to Hoffa’s hotel room in Nashville.

The Government offered no proof as to the subject matter ‘

of the telephone calls. Campbell testified that they related

to Union or family matters.

The jurors were not concluded by Campbell’s explanation

of the telephone calls. The jury had the right to consider

the evidence as to the telephone calls along with the other

evidence in the case and in connection with the efforts at

the time of Parks and Walker, a Nashville police officer, to

approach the juror Gratin Fields. They could consider the

timing and number of the telephone calls, and the fact that

some were made from and to pay booths, and most of them

paid for in cash.

The evidence was circumstantial. The jury could infer

that Campbell was in constant communication with the con-

spirator Parks and that Campbell reported thereon to Hoffa

by way of Detroit.

Once a conspiracy has been established, only slight evi-

dence is necessary to connect a defendant with it. Poliafico

v. United States, 237 F. 2d 97, 104 (C.A. 6, 1956) cert. denied

352 U.S. 1025; United States v. Gosser, 339 F.2d 102, 110

(C.A. 6, 1964).

Orner Ciamep Errors

1 Alleged Limitation of Cross-Examination of Partin.

Although Partin was cross-examined for a period begin-

ning February 6, 1964 and running through February 12,

1964, the defendants claim that their right of cross-exam-

ination was unduly restricted. The record does not sustain

this contention.

The defense asserts that the Court did not allow them

to cross-examine Partin concerning the recordings and

Tz

*

43a

transcripts of Partin’s two telephone conversations with

Hoffa. These were made available to the defense before

Hoffa took the witness stand. They were offered in evi-

dence by the defense, read to the jury and commented on

in oral argument.

At no time after the recordings were made available to

the defense did they ask permission of the Court to cross-

examine Partin relative thereto, although Partin ‘‘was

present and produced in the court room as late as the

final days of testimony before the jury“. (Finding Trial

Court app. 340(a)).

The Court did not err in restricting the cross-examina-

tion of Partin relative to the alleged threat of Hoffa to

kill Attorney General Kennedy. This was a collateral mat-

ter, the disclosure of which to the jury would in our judg-

ment have been extremely prejudicial to the defendants.

They did not all agree to waive any prejudice which might

have resulted from the disclosure. (App. 1548(a)). Had

Hoffa been permitted to conduct such an inquiry, he would

then have been entitled to offer testimony to refute or rebut

the testimony of Partin which he had thus elicited, and the

trial would have been diverted into a determination of im-

material and extraneous matters. The Court did permit

cross-examination of Partin with respect to any promises

or threats which would influence his testimony, and allowed

a wide latitude with respect to many other matters. It

was within the discretion of the Court to limit cross-

examination relative to collateral matters. Lohman v.

United States, 266 F.2d 3 (C.A. 6, 1959) cert. denied 361

US. 923.

We find no error in the admission of the Government’s

rebuttal testimony concerning Partin’s reputation for truth

and veracity.

44a

2 Privilege of Mrs. Partin *

The defense called Mrs. Partin as a witness for the

purpose of proving that Partin’s numerous encounters

with the law and domestic troubles arose from and were

created by drug addiction and association and residence

with strange women“. |

After Mrs. Partin was sworn as a witness, she asked

the Court:

% would either like to retain counsel or either ask

you if I have the privilege . .. to not testify. Can I

use my privilege?’’ | ,

The Court excused the jury and appointed a lawyer to

represent her. The lawyer reported to the Court that she

did not want to testify. In answer to a question by the

Court as to whether she was claiming her privilege, she

answered, I do not want to testify’’.

The Court did not require her to testify. We think her

testimony was privileged; E.g. Hawkins v. United States,

358 U.S. 74 (1958); Brunner v. United States, 168 F. 2d 281

(C.A. 6, 1948); that the privilege was sufficiently invoked;

that Partin did not consent to the admission of his wife’s

testimony; and that the proffered testimony in any event

was not admissible. Partin had not been convicted of any

narcotics offense nor of adultery. There was no evidence

that Partin was under the influence of narcotics when he

reported to Sheridan or when he testified as a witness.

The calling of Mrs. Partin as a witness was an attempt to

impeach Partin by testimony upon collateral matters. The

proffered testimony was inadmissible. Foster v. United

States, 282 F. 2d 222 (C.A. 10, 1960).

Destruction of F. B. I. Interview Notes

In connection with the eross- examination of the witnesses

Walker and Fields, the Government pursuant to the re-

PP CSR vv

ö >

45a

quirements of 18 U.S.C. § 3500 furnished to the defense

q written statements signed by these witnesses and F.B.I.

reports relating to interviews with them. When the de-

fense learned that the original notes from which the state-

ments and reports had been prepared were destroyed, they

moved to strike the testimony of the witnesses, or in the

alternative for a mistrial. The District Court conducted

a hearing on the motion.

The evidence disclosed that Walker was interviewed twice

by F.B.I. Agent Sheets. In the first interview Shéets took

notes, a portion of which were in long hand, and some in

shorthand. These notes were not read to the witness, nor

approved by him. Sheets prepared a typewritten state-

ment from the notes, which the witness read, approved and

signed. Sheets also prepared a report of the interview.

He testified that both the statement and the report con-

tained substantially the same information as his notes.

After the typewritten statement was approved and signed

and the report prepared, he destroyed the notes in accord-

ance with the regular practice of his department.

Fields was interviewed by Agents Sheets and Steele.

Sheets took notes of the interview. There was no evidence

that Fields ever read or approved the handwritten notes.

Sheets prepared a typewritten statement and report from

his notes. Fields read, approved and corrected the typed

statement where indicated, and signed it. The notes were

then destroyed.

At the conclusion of the hearing the District Court aa

that only the signed statements and reports were producible

and denied the alternative motions.

The defense had available for impeachment purposes the

signed typed statements of both witnesses and the F. B. I.

reports. The typed statements and reports embodied the

substance of the interview notes. The agent was not re-

quired to preserve his longhand or shorthand notes or other

46a

v

memoranda from which he prepared the witnesses’ type-

written statements. There is nothing to suggest bad faith

in what the agent did. Campbell v. United States, 373

U.S. 487 (1963); Campbell v. United States, 365 U.S. 85

(1961); United States y. Aviles, 337 F.2d 552 (C.A. 2,

1964); United States v. Spatueza, 331 F.2d 214 (C.A. 7,

1964) cert. denied 379 U.S. 829; Ogden v. United States,

323 F. 2d 818 (C. A. 9, 1963) cert. denied 376 U.S. 973.

The question was one of fact for determination by the

District Judge, whose decision we may not disturb unless

clearly erroneous. Gosser v. United States, 339 F.2d 102,

113 (C.A. 6, 1964). In our opinion the ruling was sup-

ported by substantial evidence and is not clearly erroneous.

4 The Sheridan Cryptic Notes

Walter J. Sheridan was a Special Consultant to the At-

torney General. He was not a lawyer. He was called as a

witness by the defense in connection with their motion to

suppress the testimony of Partin, which motion was heard

in the absence of the jury.

Sheridan testified among other things that Partin re-

ported to him on the jury tampering activities during the

Test-Fleet trial. He made ‘‘cryptic’’ notes of these conver-

sations. Six or seven months later Sheridan reduced some

of the material in the notes to typewritten form. Pursuant

to request of the defense, the cryptic notes and typewritten

sheets were turned over to the court for in camera inspec-

tion. The Court made an inspection, and denied the de-

fense motion to produce them. We have also examined

the notes and sheets and agree that they were not pro-

ducible.

This material was not discloseable to the defense under

18 U.S.C. § 3500. It did not purport to be a substantial

verbatim record of conversations between Partin and Sheri-

dan. It was never examined, approved nor adopted by

—

47a

Partin. The Distriet Court was correct in ruling from the

evidence that this did not constitute a statement of Partin

within the meaning of 18 U.S.C. § 3500.

It could not be used as a statement of Sheridan because

in that particular proceeding he was testifying as a defense

witness. The Government attempted to call Sheridan as

a rebuttal witness but the Court sustained defense objec-

tions thereto. ' ,

The claim of the Appellants is that apart from the Jencks

Act (18 U.S.C. § 3500), they were entitled to inspect Gov-

ernment records to ascertain whether Government evidence

was ‘‘tainted’’ by leads obtained from illegal activities.

Congress passed 18 U.S.C. § 3500 because the decision of

the Supreme Court in Jencks v. United States, 353 U.S.

657 (1957) was being extended into areas far more sweeping

than Jencks and under circumstances far removed from

that case. In construing the statute the Supreme Court

held that the statements must be producibleainder the Act

or they cannot be produced at all. Palermo v. United

States, 360 U.S. 343 (1959). . "

But we have held that the Government’s evidence was

not tainted; that Partin was not placed in the midst of the

defense by the Government but by agreement with Hoffa;

and that there was no interference in the attorney-client

relationship.

The Government did produce its informant, who was al-

leged to have been engaged in illegal activities and was

cross-examined at great length. It also offered to produce

the testimony of Walter Sheridan.

It was not necessary to produce Government reports to

establish that no evidence had been obtained by illegal

telephone interception. The recordings were by permission

of the sender, and were lawful. They did not violate 47

U.S.C. § 605. The Government could have introduced them

*

>

48a

in evidence. Rathbun v. United States, 355 U.S. 107 (1957) ;

Lindsey v. United States, 332 F.2d 688 (C. A. 9, 1964).

The defense must not have thought that the recordings

were damaging because they offered them in evidence. The

only material evidence which they disclosed was the ar-

rangements with Hoffa for Partin’s proposed trip to Nash-

ville.

Both Partin and Daniels, who listened in on two telephone

conversations, reported the substance thereof to the Gov-

ernment. The Court found that the Government’s evi-

dence was obtained from independent sources rather than

from the recordings.

In our judgment the rulings of the District Court were

supported by substantial evidence and were not clearly er-

roneous. Gosser v. United States, supra.

5 The Petit Jury

On the first day of the trial Appellants filed motions to

strike the array of two hundred prospective petit jurors.

At that time seventy-six jurors were sittmg in the court

room awaiting voir-dire examination. The Court heard

extensive oral arguments and denied the motions without

taking testimony. The grounds for the ruling were that

the motions had not been timely filed and that no showing

was made which entitled Appellants to a hearing.

Rule 12(b)(2) of the Federal Rules of Criminal Pro-

cedure reqtired motions of this type to be filed before trial.

Shotwell Mfg. Co. v. United States, 371 U.S. 341 (1963);

Frazier v. United States, 335 U.S. 497 (1948).

The purpose of the rule undoubtedly was to prevent the

diversion of a trial by protracted excursions into pre-

liminary matters at a time when the witnesses and jurors

were kept waiting in the courtroom or its environs.

Appellants urge that the rule ought not to be invoked

here because the Court did not make the list of prospective

49a

petit juror available to them until the morning of the trial,

and they had no opportunity to investigate the jurors.

The Court found, however, that Appellants knew from

and after December 28, 1963 that the case was assigned

for trial on January 20, 1964; that a preliminary hearing

was held on January 18, 1964, at which all counsel were

present and no mention was made then of any intention to

challenge the array; that the regular jury panel had been

drawn prior to the commencement of the November 1963

term of court; that on December 28, 1963 the Court had

ordered the drawing of two hundred additional pames from

the jury box for prospective jury service; and that the

names of the additional jurors were drawn at a public

drawing on January 9, 1964, at which at least one of counsel

for Appellants was present.

At the drawing, however, on orders from the Court as a

precautionary measure, only the last name and the first

initial of each prospective juror were announced. The

full names, addresses and occupations of the jurors were

not made available to counsel for the Government or for

the defense until the morning of the trial.

Two defense counsel had previously inquired of the

Clerk or Jury Commissioner as to the method used in pro-

curing the names of the jurors. One of the counsel reported

to the Court the Clerk’s statement that he had done the

best he could to try to get a cross-section of the community.

Information was available to counsel by inquiry of the

Clerk or Jury Commissioner as to the manner in which the

November 1963 Term panel and previous panels were

drawn, and the names, residences and occupations of the

jurors,

In view of the prior availability of all this information

as to the system used, it was not necessary for Appellants

to wait until the opening day of the trial to file their

motions to strike the array. Appellants did not need the

50a

names, addresses and occupations of the January 9th panel

in order to prepare and file their motions to strike the

array.

In their arguments to the Court Appellants made no

proffer to show by specific evidence that cognizable groups

in the community had been systematically excluded or that

the jury box did not in fact contain names of jurors repre-

senting a fair cross-section of the community.

As we pointed out in connection with the issue concern-

ing the selection of the grand jury, the burden was upon

Appellants to offer distinct evidence in support of their

motions. Glasser v. United States, 315 U.S. 60 (1942). Ap-

pellants did not.offer such evidence.

The nub of Appellants’ argument to the Court was that

the number of Negroes and blue collar workers in the jury

box was disproportionate to their total ‘representation in

the community. But it is settled that Appellants were not

constitutionally entitled to a proportionate number of any

particular group on the jury roll or panel. Swain v.

Alabama, 380 U.S. 202.

The District Court was correct in denying the motions.

6 Misconduct of Jury and U. S. Marshals

Misconduct of jury and U.S. Marshals was asserted in

motions for a new trial which were accompanied by affi-

davits. The alleged misconduct of the jurors was that

considerable whiskey and drinking-equipment was sent to

the hotel floor on which the jurors stayed; that on one

occasion jurors were seen with drinks in their hands; that

one unidentified person who was thought to be a juror, came

into the hotel in an intoxicated condition; and that in the

hotel jurors had mentioned the name of Hoffa. Counter

affidavits were filed by the foreman and other jurors and

by the United States Marshals denying any misconduct.

5la

The affidavits submitted by Appellants were insufficient

to warrant a hearing. The Court in his memorandum

opinion commented:

„Not a single affiant purports to have any personal

knowledge of the activities or behavior of a single juror

in respect to the use of beverages at any time, nor

does any affidavit identify a single juror or a single

officer as having done anything wrong in this respect.

The Court had the opportunity of observing the jury

during the course of the long trial. He stated that

Each juror was both most alert and most patient

throughout the trial’’;

that

_ “each juror conducted himself or herself with the ut-

most decorum and utmost impartiality throughout the

trial’’;

that

„each juror conducted himself or herself with obvious

awareness of his or her responsibility to give careful

attention to each and every item of the evidence and

instruction of the Court“;

„Not once did the Court observe a lack of attention

on the part of a single juror“.

— The Court frequently observed the jurors leaning forward

in their seats listening to the proceedings.

Misconduct alleged of the Marshals which did not take

place in the presence of the jury need not be considered.

With respect to remarks alleged to have been made by al-

ternate juror Curbow, we think the Court properly handled

52a

the matter by repeating his instruction to the jury that

they should not discugs the case among themselvzs. This

alternate juror was excused when the regular panel was

sent to deliberate. 5

7 The Prosecutor’s Closing Argument to the Jury

Appellants contend that the Prosecutor’s closing argu-

ment to the jury constituted prejudicial error so as to re-

quire a mistrial. We do not agree.

The case had been bitterly fought. The closing argument

of the Prosecutor must be considered in the light of the

previous arguments of defense counsel in order to deter-

mine whether there was provocation for what the Prosecu-

tor said.

The Government’s case was termed by one of the defense

counsel in his argument as ‘‘a foul, filthy frame’’, a dia-

bolical plot’’ and the Department of Justice [was] its

mother“. Another defense counsel said:

At times you wonder in the course of this trial

with these Washington prosecutors was Naziism really

licked !“

He continued:

The outlaws in this whole case are the Washington

prosecutors, engineered by Robert Kennedy and Mr.

Sheridan.“

These and other arguments made by defense counsel at-

tackéd the integrity of Government counsel. The Pro-

secutor had the right to make a vigorous response.

It was not improper for the Prosecutor to state his

belief in the guilt of the Appellants where, as here it

was based upon the evidence in the case, Henderson v.

United States, 218 F.2d 14 (C. A. 6, 1955) cert. denied 349

U.S. 920, and his integrity had been questioned. Nor

was it wrong to argue that a person who had been proven

guilty ought not to be acquitted.

n * ae

53a

We find no prejudice in the Prosecutor’s reference to

Appellant King having taken the Fifth Amendment at the

Test-Fleet trial. King, in his direct testimony, indicated

that he did resort to his privilege not to testify. He thus

injected the subject into the case. In any event, the Court

instructed the jury to disregard it.

8 The Trial Court’s Instructions

(a) Contentions and Theories

At the request of the Court the Government and each

Appellant except Campbell submitted written requests for

instructions to the jury which embodied their respective

contentions and theories.

The Court instructed the jury as to Appellants’ theories

and contentions in the exact language contained in their

requests to charge. With respect to Campbell, who sub-

mitted no request to charge, the Court instructed the jury

that his position was that he was not guilty of the offense

of which he had been charged.

The Court eliminated a substantial portion of the Gov-

ernment’s requests and gave the balance in the language

requested. The Court’s instructions with respect to the

Government’s contentions and theories are contained in

seven pages of the printed appendix, and as to the Appel-

lants’ on six pages.

All counsel had been advised on the previous day as to

the requests to charge which the Court would give to the

jury.

Appellants admit the propriety of the Court’s instruc-

tions to the jury as to their own contentions and theories,

but they think it was improper for the Court to instruct as

to the Government’s. They state:

Rut we know of no authority for the court to present

the theory of the Government as its theory is em-

bodied in the indietment to which the Government must

be held.“

54a

It is also true that the defendants’ theories are embodied

in their pleas of not guilty, but that does not mean that

they are not entitled to have their theories fully presented

to the jury where there is foundation therefor in the evi-

dence.

In our opinion it was the function of the Court to in-

struct the jury as to the theories of both prosecution and

defense. See Perez v. United States, 297 F. 2d 12 (C. A. 5,

1961); Bernstein v. United States, 234 F.2d 475 (C. A. 5,

1956) cert. denied 352 U.S. 915; Marson v. United States,

203 F.2d 904 (C.A. 6, 1953).

Appellants state:

Not being apprized that the Court would go into

such an elaborate summary of the evidence, the de-

fendants were deprived of a fair charge by the Court

on that issue only.’’.

As we have previously stated, the record shows that

Appellants were apprised on the day before that the Gov-

ernment’s requested charges with respect to its theories

would be given by the Court. Six pages of the appendix

contain Appellants’ requests verbatim. Appellants were

represented by able and experienced counsel. If they

thought at the time that their theories and contentions

should be treated more extensively by the Court, the way

was wide open for them to enlarge their requests, either

on the day previous or at the time the requests were ac-

tually given. They had full opportunity to make the most

of presenting their theories. If their requests were in-

adequate to present their theories, the fault certainly can

not be charged to the Court.

(b) Reasonable Doubt

The Court properly instructed the jury on reasonable

doubt. It was not necessary for him to give a charge

(Request U) which related the doubt to a particular wit-

U ee Se

55a

ness. The Court gave proper instructions on the credibility

of witnesses.

(c) Ratification

Nor was the District Court required to give the requested

instructions on ratification by Hoffa of the endeavors to in-

fluence the jury, as there was no evidence which would

justify giving them. Hoffa did not admit that he knew of

the endeavors nor that they were agreeable with him. He

denied all of the statements attributed to him by Partin. If

the Government’s evidence was to be believed, he was an

active participant, and not a mere ratifier.

(d) Informer Cautionary Instruction

Appellants contend that it was prejudicial error for the

Court to refuse to give a specific cautionary instruction

with respect to informers. They claim that Partin was a

paid informer and that the Court should have instructed the

jury that his testimony was to be received with caution.

There was no evidence that Partin received money from

the Government except for expenses which he incurred

some time after the trial. Whether a special cautionary

instruction should have been given on informers was within

the discretion of the Court, to be exercised in accordance

with the particular facts and circumstances of each case.

Siglar v. United States, 208 F.2d 865 (C.A. 5, 1954) cert.

dented 347 U.S. 991.

The Court did give a cautionary instruction although not

in the language requested, and it did not mention informers

specifically. It was a comprehensive charge on credibility,

which covered all of the elements to be considered in weigh-

ing the testimony of the witnesses and parties in this case.

He told the jury to—

„ .. serutinize carefully the testimony given and the

circumstances under which each witness has testified

and every matter in evidence which tends to indicate

whether the witness is worthy of belief. Consider each

witness’ intelligence, his motives, state of mind, his

: eee N eee eee 2 — — — —

— = : — — . —— — . — . — —

56a

demeanor and manner while on the witness stand.

Consider also any relation each witness may bear to

either side of the case; the manner in which each wit-

ness might be affected by the verdict; and the extent

to which, if at all, each witness is either supported or

contradicted by other evidence.“

He also instructed the jury on impeachment, false testi-

mony, character evidence, conflicting testimony, perjurors,

felons and self interest!

The Court was not required to give the instruction in the

exact language requested by the defense. While it would

have been better practice for the Court to have given a

separate instruction with particular reference to the testi-

mony of an informer, the failure to do so was not reversi-

ble error. United States v. Ball, 344 F.2d 925 (C.A. 6,

1965).

We do not consider this as a case where the testimony

of the informer lacked corroboration.

(e) Presumption as to Witnesses Telling the Truth

The Court instructed the jury that there was a presump-

tion that each witness, including the parties, has sworn to

the truth and it was the duty of the jury to reconcile con-

flicting statements if they could, but if they could not, they

were the exclusive judges of the credibility of witnesses

and the weight to be given to their testimony. The Court

instructed the jury that the presumption was rebuttable

and may be outweighed by the manner in which the witness

testified, by the character of the testimony given or by

contradictory evidence. Taking the instruction as to pre-

sumption in its context with the entire instruction on credi-

bility, we do not see how it could prejudice the Appellants.

(f) The Cautionary Instruction on Accomplice

Testimony

57a

The instruction given was as follows:

„Should you find from the evidence in this case that

any witness was an accomplice, you should keep in

mind that such testimony is to be received with cau-

tion and weighed with care. An accomplice is one who

unites with another person in the commission of a

crime, voluntarily and with a common intent.“

An instruction on accomplices had been requested by

counsel for Appellant Parks. The Court did not give it in

the form requested because it related to the witnesses,

Walker and Fields. There was no evidence that Fields was

an accomplice. There was also a question whether the

witness, Oscar Pitts, was an accomplice. It was better for

the Court under the circumstances of this case to give the

instruction on accomplices in general terms rather than to

relate it to the testimony of any particular witness. There

was nothing in this instruction which related to the de-

fendants as accomplices. In our opinion the instruction

was not erroneous. 2

.

(g) Presumption of Innocence

We see nothing objectionable in the Court’s instruction

on the presumption of innocence. Appellants claim it

should have gone further than it did, but they made no ob-

jection at the time and therefore cannot complain. Rule

30, Fed. R. Crim. P.

We do not think the charge of the Court was misleading

or confusing as Appellants claim. The fact that the jury

acquitted Hoffa and the defendants Dorfman and Tweel

on Count IV of the indictment would seem to indicate a

careful consideration of the evidence and an intelligent

application of the Court's charge.

Upon consideration of the record as a whole, we find no

error Which affected the substantial rights of the Appel-

lants. Rule 52, Fed. R. Crim. P.

Affirmed.

*

: * — * an a — tithe rig a — — rime Tints “

— Oe Fad a ee — — oe 2

" . 2 1 2 N : : —

58a

APPENDIX B

(Filed July 29, 1965)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 15,876

Untrep States or America, Plaintiff-Appellee,

v. :

James R. Horra, Defendant-Appellant.

BerorE: Wick, Chief Judge, Mx and Cecn, Circuit

Judges.

Judgment

Arrzal. from the United States District Court for the

Eastern District of Tennessee.

Tum Cause came on to be heard on the record from the

United States District Court for the Eastern District of

Tennessee and was argued by counsel.

On CoxsmRRATIOx WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be and the same is hereby affirmed.

No costs awarded. Rule 23 (4).

Entered by order of the Court.

CAR W. Reuss, Clerk

A True Copy.

Attest:

Cart W. Reuss, Clerk

Issued as Mandate:

Costs :

. —

Printing $

1 — * 2 —

59a

APPENDIX C

The Court: Ladies and gentlemen, during the course of

the questioning the jury on the voir dire examination I

stated to you that the occasion might arise during the

course of the trial for the Court to instruct you to con-

sider evidence against some but less than all of the de-

fendants. I even further instructed you that you would

try the case of each defendant separate and apart from

each other defendant.

The occasion has now arisen for the Court to instruct

you to do just that. The attorneys for the government

propose to question this gentleman as to certain state-

ments alleged to have been made to him by the defendant

Thomas Ewing Parks. The testimony of the witness as

to those statements will be hearsay as to the defendants

other than Mr. Parks and ordinarily would not be ad-

missible.

We have a general rule of law that hearsay testimony

is ordinarily not admissible in court; that is, a statement

by a witness on the stand as to what someone outside of

the court may have said, and there is good reason as to

why there should be such a rule of law because it’s gen-

erally proper and desirable and more reliable in a case

if everyone comes in and gives his own statement or

testifies as to matters upon which he or she can be ex-

amined and can be cross-examined rather than having

some witnesses on the stand telling what someone else said

outside of the courtroom.

So, for that reason, we have a general rule of the law

of evidence that hearsay statements ordinarily are not

admissible in testimony. There are a number of excep-

tions to that rule wherein hearsay testimony is admissible,

wherein one witness is permitted to testify what some

third party or a defendant, as the case may be, may have

said outside of the courtroom.

60a

Under a standard exception to the hearsay rule, the

testimony as to the statements of a party, one of the

parties, may be admissible as to that party or that de-

fendant if said statement constituted admissions or dec-

larations against his own interests.

Another standard exception here to the hearsay rule

is to the admissions or declarations against interests by

one party and when they may be admissible even as to

another party provided that there is other evidence in

the case that shows that one, that the party making the

out-of-court statement was a co-conspirator with the other

parties or with some of them.

And second, provided that it appears from other evi-

dence that the statements were made in the furtherance

of a conspiracy with other parties and while the con-

spiracy was in existence.

Now, the theory underlying this exception to the hear-

say rule is that statements of a co-conspirator made in the

furtherance of the conspiracy and while a conspiracy is in

effect are in effect the statements of a co-conspirator and

if against the interests of such co-conspirator based then

place them on the same footing as admissions or declara-

tions against the co-conspirators’ own interests.

In other words, the general idea of principal and agent

is somewhat related to this. That is, that if the relation-

ship of principal and agent is shown and the agent make

statements within the authority of the agency, those state-

ments can be admitted not only as to the agent but they

can be admitted as to the principal.

Likewise, it is that statements of a conspirator made

out of court can be admitted even though hearsay as to

a co-conspirator provided as the Court has pointed out

to you that from other evidence it is shown that the party

making the statement was a co-conspirator and that the

G ee he) to”

6la

statements were made in furtherance of the conspiracy

and during the time the conspiracy was in existence.

Now, to justify offering this evidence at this time, the

government will be required at some stage in the proceed-

ings of this case by order of proof to establish that the

defendant Thomas Ewing Parks was a co-conspirator with

one or more of the other defendants. And that the state-

ments in question were made in furtherance of that con-

spiracy. 2

The Court will, therefore, permit the testimony at this

time both as to Mr. Parks and as to any other party de-

fendant whom it shall be established or if it shall be estab-

lished was a party to a conspiracy with Mr. Parks and at

the time the statement was made. ‘

I would caution you, however, that you will consider

this testimony of any statement made by Mr. Parks only

as to Mr. Parks until and unless you are satisfied by other

evidence in the case that at the time of making of these

alleged statements the defendant Thomas Ewing Parks

was a co-conspirator of one or more other defendants in

which event you may then consider such evidence against

any other defendant shown by such other evidence to

have been a co-conspirator of the defendant Thomas

Ewing Parks.

Now, in order that you may understand this instruction

properly, it is also proper that I should instruct you with

regard to conspiracy and what a conspiracy is, what we

are talking about when we talk about a conspiracy.

A conspiracy is simply an agreement between two or

more persons to do an unlawful thing or, to do a lawful

thing by unlawful means. The agreement to pursue an

unlawful purpose is essential to the existence of a con-

spiracy but the agreement need not be express or in so

many words. It may be implied. Or tacitly understood

between the conspirators and it may be proved by cir-

62a

cumstantial evidence or by the proving of other facts from

which the existence of a conspiracy may reasonably be

inferred.

It is not essential to the existence of a conspiracy that

the agreement between the conspirators be formally made

between the parties at any one time. If, for example,

two persons agree to pursue an unlawful purpose and then

a third person subsequently with the knowledge of the ex-

istence of the conspiracy joins in and assents to the con-

spiracy either impliedly or expressly then all three persons

are conspirators in the same conspiracy, and the same

instructions would apply to any number of alleged co-

conspirators.

It is not necessary that all of the conspirators ever meet

together. All that is required is that each party know of

the existence of the conspiracy. And that each agree: to

assist in some manner in the furtherance of the unlawful

purpose.

Tifus, a conspiracy is in the nature of a partnership to

violate the law and each conspirator is regarded as the

agent of his co-conspirator when a conspiracy is estab-

lished.

It is for this reason that the statements of one conspira-

tor made in furtherance of a conspiracy are admissible

and may be considered as evidence against his co-con-

spirator or co-conspirators, as the case may be, provided

as I have indicated to you that the conspiracy itself is

established by evidence other than a statement of the al-

leged co-conspirator and provided that the statement of the

co-conspirator in this case, Mr. Parks, is the party whose

statement is purported to be introduced, provided that the

statement is made at a time when the conspiracy was in

effect, if you should find that there was a conspiracy and

if you should find that a conspiracy was in effect.

\

n «

. —

(Excerpts from Exhibits A attached to Motions for

Continuance in Nashville (I. D. A. 18a) and in Chattanooga

(I.D.A._218a-220a))

November 21, 1963

Nashville Tennessean, page 1.

Z. T. Osgonx, Jz. Disparrep ror Horra Case Brise Try.

$10,000 Proposal Charged.

Nashville Tennessean, page 1.

Court ‘Convincep’ ATTORNEY Gomer.

Nashville Tennessean, page 6.

Editorial: Court Meets Challenge.“

Nashville Banner, page 1.

Horra TnraL Dare Sraxps. Not Affected by Osborn’s Dis-

barment.

Nashville Banner, page 1.

I Was Traprep: Ossorn. Were Others Approached?

Nashville Banner, page 4.

Vick ‘Apmrts’ HR TRD To Fix 62 Horra Juror.

Chattanooga Times, page 1.

Bw To Inrivence Juror Is CHARGRD To Horra Lawyer.

Osborn Accused. Disbarred by U. S. Courts for Re-

portedly Offering $10,000 for Mistrial. (Photo of Osborn

and Hoffa accompanying story.)

Chattanooga News-Free Press, page 1.

AtToRNEy For HorfA Barrep Ix Brise Try. 2 Federal

Judges Say Guilty in Plot.

Chattanooga News-F ree Press, editorial page.

Editorial: Shocking, Disgusting Story.” ( Excerpts:

Teamsters Union Dictator J immy Hoffa has been through

a lot of narrow squeaks with the law without getting con-

victed .. . The people of the nation should be greatly out-

raged by the evidence that has been presented.’’)

64a

November 22, 1963

Nashville Banner, page 1.

_ Vicx ‘Apmrrs’ HR Trp To Fr 62 Horra Juror. Court

Told Hoffa Not Involved.

Nashville Tennessean, page 1.

U. S. Prose or Osporn Set. Attorney Says He’ll Appeal.

Nashville Tennessean, page 22.

Editorial: ‘‘Court Proves Sanctity in Osborn Disbar-

ment.“ e

Chattanooga Times, page 14.

Editorial: The Osborn Affair.“ (Excerpts: ‘‘... thor-

oughgoing evidence of extreme judicial concern with pos-

sible jury tampering during a trial of Teamster President

Jimmy Hoffa, the charmed liver from Detroit... Every

further effort must now be made to nail down the sources

of money that was to be offered the prospective juror

This is the sort of thing that often seems to follow in the

wake of Jimmy Hoffa. .. . Interest in the approaching trial,

already high, has been multiplied several fold.’’)

November 23, 1963

Chattanooga Times, page 12.

Jury Prose Seen ror Ossorn Case.

November 26, 1963

Nashville Banner, page 1.

Jury Meets Monpay on ‘TAMPERING.’

November 27, 1963

Nashville Tennessean, page 1.

Bar To WeicxH Ossorn’s Cask.

Nashville Tennessean, page 1.

Osgonx Seeks New HeEanrina.

65a

Chattanooga Times, page 2.

Jury Wi Loox at Ossorw CASE. (Excerpt: ‘‘.,. Osborn

is accused of attempting to offer a $10,000 bribe in con-

nection with upcoming trial of Hoffa.)

Chattanooga News-Free Press, page 14.

Horra Cutcaco Tran To Warr. Nashville Prosecution Still

Comes First.

Chattanooga News-Free Press, page 40.

Ossorn Warves Practicine Law.

Chattanooga News-Free Press, page 55.

TBA To Prose ‘Dispar’ Case. (Excerpt: ‘‘...The two

judges accused Osborn of trying to set up a $10,000 bribe

in connection with the upcoming trial of Hoffa. The

Teamsters Union President charged with jury tampering

goes on trial Jan. 6.’’)

November 30, 1963

Nashville Banner, page 1

Jury Szcurrry Orperep IN Horra Cask.

December 1, 1963

Nashville Tennessean, page 1.

Vick To Talx To U. S. Jury.

December 2, 1963

Nashville Banner, page 1.

Jury Launcues Prose, Hears Tarn Recorpines, (Excerpt:

%.. 2 tape recorders were brought to the heavily guarded

8th floor jury room.’’)

Chattanooga News-Free Press, page 10.

Prope Ovens 1x Horra Case. Attempt to ‘Fix’ Trial

Charged by U. S. ( Excerpt: A ‘‘heavily guarded Federal

grand jury was scheduled to begin hearings today. . 9

66a

December 3, 1963

Nashville Tennessean, page 1. ..

Tamper Jury Hears 3 Mew.

Nashville Banner, page 1.

Jury Broapens INVESTIGATION.

“

Chattanooga Times, page 2.

Evience Tapep in Ossorn Case. Grand Jury Meets to

Hear Recordings of Lawyer for James Hoffa. (Excerpt:

% Hoffa and six others are scheduled to go on trial in

January on charges of jury tampering. ..’’)

December 4, 1963

Nashville Banner, page 1. .

Ossorn RenEartne Dentep. Appeal Expected in Case.

Nashville Tennessean, page 1.

Jury Questions 3 Ex-Jurors Ix Horra TRIXL.

, Chattanooga News-Free Press, page 1.

New Ancoies Seen IN 2Np Horra Prose. Federal Panel

Summons Jurors From First Trial. (Excerpt: ‘‘A U. S.

Attorney said today ‘new avenues’ have been opened in a

second federal grand jury investigation of the case which

led to the indictment of Teamsters President James R.

Hoffa on jury tdmpering charges.’’)

Chattanooga Times, page 9.

Jury Broapens Ossorn Inqumy. Conspiracy Trial of

Hoffa Last Year Included in Current Probe.

December 5, 1963

Nashville Tennessean, page 1.

Ossogy Dentep New TRIAL. Disbarred Attorney to Appeal.

Nashville Tennessean, page 1.

Tamper Jury Broapens Quiz.

-

Qhattanooga Times, page 4. ;

Osbonx Bm Rervusep. Lawyer Fails to Win New Hearing

on Disbarment. * 7

67a

December 6, 1963

Nashville Banner, page 1.

U. S. Jury To TIL Derams or Its ‘Tamper’ Prose.

Nashville Tennessean, page 1.

Jury Prope Herp Neartne Enp.

Chattanooga Times, page 1.

Spiit Reportep Between Horra anp Carer Ame. (Ex-

cerpt: ‘‘... Hoffa has been acquitted on charges of bribery

and wire ‘tapping. An indictment accusing him of mail

fraud and misuse of $500,000 in union funds in a Florida ~

real estate deal has been dismissed. His trial late last

year in Nashville on charges of receiving unlawful pay-

ments from an employer ended in a hung jury. He still

faces trial on federal charges of jury fixing arising from

the Nashville case and of conspiring with others to obtain

fraudulently $20 million dollars in loans from the Team-

sters’ Central States Pension Fund headquartered in Chi-

cago.’’) .

December 7, 1963

Nashville Tennessean, page 1.

U. S. Jury Inpiors Ossorn.

Nashville Banner, page 1.

Osrorn Jury To Wien Prose.

Chattanooga News-Free Press, page 1.

‘InpictMent Crres Ossorn. 3 Bribe Tries Laid to Hoffa

Attorney.

(The following newspaper stories, ete. appesiid in the

Chattanooga newspapers from December 15, 1963 to

January 8, 1964. Parallel stories, if any, in the Nashville

newspapers were not offered, since the motion for removal

from Nashville referred only to the prejudicial newspaper

publicity up to the time of the filing of said motion on

December 11, 1963. The motion for ane in Chat-

tanooga was filed on January 13, 1964.)

ee ee ee ee ee Le a p ˙ -- U T 2

68a

December 15, 1963

Chattanooga Times, page 37. .

Disparment Set Acarnst Osporn. State Bar Group to

Take Action Against Former Hoffa Attorney.

December 17, 1963

Chattanooga Times, page 10.

Editorial: ‘‘Jimmy Hoffa’s Troubles and Tennessee Team-

sters.’’

December 18, 1963 .»,

Chattanooga Times, page 5.

Two More Horra Case-DEFENDANTS WaNT VENUE CHANGE

IN NaSHVILLE.

Chattanooga News-Free Press, page 37. |

Horra Morton Heanine Ser. Wilson to Preside at Friday

Session.

December 19, 1963

Chattanooga Times, page 1.

Jupazs Ban Seconp Atrorney From Court In NasHvILie.

Jurist Accuses Harry Beard of Discussing with Hoffa’s

Lawyer, Z. T. Osborn, Way to Sway Jury to Vote for

Acquittal. :

Chattanooga News-Free Press, editorial page.

Editorial: Another ‘Fix’ Report.“ (Excerpts: „The

administration of justice in our courts is gravely threatened

... The astounding Jimmy Hoffa case record becomes more

so all the time.) ‘i :

Chattanooga News-Free Press, page 8. ;

U. S. Covrr Dissars Szconp LawYer 1n Juror Case.

December 20, 1963

Chattanooga Times, page 21. 14

Horra Hearne Set ron Topay. ;

5 —

ete

December 21, 1963

Chattanooga Times, page 1.

CHAN OF VENUE ASKED ror Hora. Defense Claims

Publicity Inspired by Government Rules Out Fair Trial.

December 22, 1963

Chattanooga Times, page 3.

Wuson Stupyinc Horra Pizapinas.

December 25, 1963

Chattanooga News-Free Press, page 16.

Horra Rerrian Set Janvary 20.

| December 26, 1963

Chattanooga Times, page 1.

January 20 New Dare ror Horra Trut.

December 28, 1963

Chattanooga News-Free Press, page 4.

Ossorn Asks ron REVERSAL.

December 30, 1963

Chattanooga News-Free Press, page 1.

Horra Trut Moven HERE. Chattanooga Judge Wilson

to Hear Case. . é' .

Chattanooga News-Free Press, page 4.

Horra Tru ‘No Detar’ To Granp Jury Prose.

‘December 31, 1963

Chattanooga Times, page 1. .

Wuson Orpers 200 ror Jury Dury January 21, 22.

Chattanooga Times, page 7.

Horra Denis Report He Orrerep To Qurr Post CHarars

1

70a

Chattanooga News-Free Press, page 1.

200 IX CREASR In JURT CALL. Date Coincides with Hoffa

Trial Start. 5

Chattanooga News-Free Press, page 4.

T RIAL. DAL! Lam to Horra. Teamsters Deny Resigna-

tion Offer.

January 1, 1964

Chattanooga News-Free Press, page 3.

Horra Lecat Heap Comine. Haggerty in Monday; Judge

Bars Cameras.

Chattanooga Times, page 3.

Jupce Wnsox Bars Puotocrapos WR Horra’s Tran

Is God On.

January 3, 1964

Chattanooga Times, page 3.

Wuson~Proutrs Quizzinc Jurors. Both Sides Ordered

to Hold Questions Until Hoffa Trial Opens. (Excerpt:

„United States District Judge Frank W. Wilson has put

a tight security clamp on jurors called for prospective duty

in the case of Teamsters President James R. Hoffa.)

Chattanooga News-Free Press, page 5.

Wuson Bars Juror Talxs. Attorneys in Hoffa Trial Get

Order. tio gs ö

January 4, 1964

Chattanooga Times, page 3.

U. S. Acents Meet on Horra Heartnc. 3 Hold Brief Con-

ference Here to Discuss Trial Plans. (Photo of Govern-

ment agents accompanying story.)

January 5, 1964

Chattanooga Times, page 3.

Preraiut Heantne Ser N Horra Casz. Judge Calls All

Counsel for Closed Conference Morning of January 18.

— I — —

71a

January 8, 1964

Chattanooga N ews-Free Press, page 1.

Horra Szexs 60 Days Detay or Trt HERE.

(The following magazines were on sale during the period

December, 1963 anuary, 1964.)

Tue ATLANTIC MoxrRLx, J anuary, 1964 issue, artiele en-

titled: The Power of James R. Hoffa.“ (Excerpts:

.. better than even chance that the cocky Teamsters

chief will eventually wind up in jail... Hoffa's web of

underworld association or his contempt for standards of

union ethics. Hoffa's mentor is Farrell Dobbs. . . The

distinctive new element that Dobbs and his Trotskyite

associates in Minneapolis...introduced into Teamster

tactics. ..’’

Saturpay Evening Post, January 4, 1964 issue, article

entitled: My Private War With Hoffa; subtitled: This

Small Trucker Defied Labor Goons and An Illegal Boycott -

Rather that Sign a Teamster Contract, But His Courage

Cost Him His Business.“

*

Bustxxss Week, January 11, 1964 issue, two-page article

entitled: Can Hoffa Hold On?“ d

APPENDIX El

DEPARTMENT OF JUSTICE

FOR IMMEDIATE RELEASE :

THURSDAY, May 9, 1963

James R. Hoffa, president of the International Brother-

hood of Teamsters, was indicted by a federal grand jury

in Nashville, Tennessee today on five counts of conspiring

and attempting to influence the jury in his recent trial on

charges of accepting illegal payments from an employer.

The indictment charged Hoffa with ‘aiding, commanding,

and inducing”’ specific attempts to influence two jurors

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eed a anaes juror to vote * his acquittal, in

exchange for money or favors.

The grand jury also named as defendants:

—Ewing King, ‘president of Teamster Local 327, Nash-

ville;

Allen Dorfman, Chicago insurance broker, who was

handled large amounts of insurance for the Teamster

union; ,

_ —Larry Campbell, Inkster, Michigan, a business agent

of Teamster Local 299, Detroit, which Hoffa heads;

—Thomas E. Parks, Nashville, Tennessee, Campbell 8

uncle;

Nicholas J. Tweel, Huntington, West Virginia, presi-

dent of Continental Tobacco Company, New York City;

—Lawrence W. Medlin, a Nashville merchant.

Hoffa was named as a defendant in all five counts and

the other defendants were named in one count each.

The indictment was based on extensive work by the FBI

which began its investigation seven months ago.

The first count, naming only Hoffa, charged he conspired

to influence the jury in his trial. The remaining four

comnts charged him and one or more of the other defend-

ants with attempting to influence specific jurors.

The prospective juror was offered $10,000; the son of

one juror was offered the same amount—to share with his

father; and the husband of the other juror was offered

assistance in obtaining a promotion, the grand jury

charged.

Hoffa was indicted in Nashville May 18, 1962 for accept-

ing $1,008,057 in payments from Commercial Carriers, Inc.,

an automobile transport company, in violation of the Taft-

Hartley Act. His trial began October 22, 1962.

Sh aa et end ne

as a RO “Nea ae em i

73a

A mistrial was declared December 23, 1962 when the

jury was unable to agree on a verdict. At that time,

United States District Judge William E. Miller disclosed

that two jurors had been dismissed at closed hearings as

a precautionary measure and that attempts to influence

them apparently had failed. ~~

Judge Miller ordered a special grand jury to investigate

reported efforts to contact and influence members of the

trial jury. The grand jury began sitting on J. anuary 17.

The two jurors were Gratin Fields of Nashville, and

Mrs. James M. Paschal of Woodbury, Tennessee. The pro-

spective juror was James C. Tippens of Nashville who had

been tentatively placed on the jury and accepted by the

Government but who was approached prior to the final

jury selection.

— —

ae

Mrs. Paschal was removed following a closed hearing

December 6 and Mr. Fields was removed after a closed

hearing December 20. Judge Miller made the records of

both closed hearings public after the mistrial was declared.

One of the four substantive counts of the indictment

E charged. Hoffa, Campbell and Parks with seeking to influ-

ence Mr, Fields through his son, Carl. Parks assertedly

| met with Carl Fields and offered him $10,000—$5,000 for

himself and_$5,000 for his father, if Gratin Fields would

f vote for Hoffa’s acquittal.

1 The indictment said that sometime in October or Novem-

ber, Parks met with Carl Fields and gave him a sum of-

money. J

The grand jury said Hoffa also conspired to try to get

b Gratin Fields’ daughter, Mattie Leath, also of Nashville,

to influence her father to vote for Hoffa’s acquittal.

King was named as a defendant with Hoffa in the count

charging the attempt to influence Mrs. Paschal. The indict-

ment charged that at Hoffa’s direction, King met. Mrs.

74a

Paschal's husband, James, a Tennessee State Highway

Patrolman, at about 1:30 a.m. November 18, in the vicinity

of Woodbury. g fiom,

King offered to assist Patrolman Paschal in securing

a promotion if he would influence Mrs. Paschal to vote

for Hoffa’s acquittal, the grand jury charged.

Medlin and Hoffa were named as defendants in the count

charging the attempt to influence Mr. Tippens. The indict-

ment asserted that Medlin, at Hoffa’s direction, met with

Mr. Tippens on October 23, 1962—the day after the -trial

began—and offered him $10,000 in exchange for a vote to

acquit Hoffa.

Dorfman and Tweel were named as defendants with

Hoffa in the remaining count. It charged them with

attempting to influence jurors through Dallas Hall, of

Nashville. | a

The indictment said that in late November, Hoffa and

Dorfman entered the Louisville and Nashville road

Union Station in Nashville, where Dorfman e a call

to Tweel, in West Virginia. Tweel assertedly called Hall,

in Nashville. 3

It was part of the asserted conspiracy to have Hall

determine the identity of acquaintences of any trial jurors.

During November, the indictment said, Tweel promised

money and things of value“ to Hall if Hall would contact

jurors—or have others do so—in connection with their

votes and opinions on the trial.

Maximum penalty for attempting to influence’ a jury

an offense covered by the obstruction of justice statute—

is five years in prison and $5,000 on each count.

The Government will ask the court to call the grand

jury back into session to consider related matters.

>

75a

" §UMMARY OF PAST CRIMINAL

ACTIONS AGAINST JAMES R. HOFFA

In the past, the following criminal actions have been

taken against James R. Hoffa, General President of the

International Brotherhood of Teamsters:

(1) On February 20, 1942, Hoffa and the late Owen

‘‘Bert’’ Brennan, a former Vice-President of the IBT,

entered pleas of nolo contendere in Detroit, Michigan,

to Federal charges of violating the anti-trust laws and

were each fined $1,000. 1 sl

(2) Wrrerap Trrurs—On May 14, 1957, a Federal

Grand Jury for the Southern District of New York

charged James Riddle Hoffa, the late Owen Bert“

Brennan and Bernard B. Spindel in a One Count

indictment charging them with conspiracy to violate

the wiretapping law. The indictment charged that

beginning in 1953 the defendants conspired to inter-

cept the telephone conversations of officials and employ-

ees of the Teamsters Union at the Teamsters Head-

quarters, Detroit, Michigan, who might be called to

appear as witnesses before a Congressional committee

and a Detroit Grand Jury_investigating labor rack-

eteering. The first trial of this indictment resulted

in a hung jury, and the jury was dismissed on Decem-

ber 20, 1957. The newspapers reported that the

jurors stood 11 to 1 for a conviction. Upon re-trial

the defendants were all acquitted on June 23, 1958.

(3) Cueasty Trrar—On March 13, 1957, James R.

~Hoffa was arrested in the District of Columbia and

charged with the bribery of John Cye Cheasty, an

-~investigator for the McClellan Committee. Mr. Hoffa

J was tried and acquitted. during the Summer of 1957 in

the United States District Court for the District of

Columbia.

76a

(4) Sun Vanier, Inc—James R. Hoffa was indicted

on December 7, 1960, in the Sun Valley matter on

twelve counts of Federal mail and wire fraud. This

indictment was dismissed on July 12, 1961 for defect

in the selection of the Grand Jury. Mr. Hoffa was

then re-indicted on October 11, 1961 on fifteen counts

of mail and wire fraud and one of conspiracy. This

matter is awaiting trial in the Middle District of

Florida. ,

(5) Assautt Or Samuet Baron—On May 17, 1962,

James R. Hoffa was charged with assault ef Samuel

Baron, a former IBT official, and released on $500

bail. On May 18, 1962, he pleaded not guilty to the

above charge and demanded a jury trial. Baron sub-

sequently withdrew the charges.

(6) Test Fieet—On May 18, 1962, Hoffa was

indicted in Nashville, Tennessee, on charges of accept-

ing payments from Commercial Carriers, Inc., between

May 1949 and May 1958 in violation of the Taft-

Hartley Act. On June 7, 1962, Hoffa entered a plea

of not guilty. Trial started on October 22, 1962, and

ended on December 23, 1962, at which time a mistrial

was declared due to a hung jury.

APPENDIX E2

DEPARTMENT OF JUSTICE

FOR IMMEDIATE RELEASE

TUESDAY, JUNE 4, 1963 =

J Hoffa and seven other men were indicted in

Chi today on charges of fradulently obtaining more

than 000,000 in 14 loans for themselves and others from

the tral States Teamster Pension Fund.

The 28-count mail and wire fraud indictment charged that

the eight men diverted more than $1,000,000 from the loans

for their personal benefit.

77a

This total included at least $100,000 used to help

extricate Hoffa from personal financial involvement in

‘Sun Valley, Inc., a Brevard County, Florida retirement

homes development, the indictment asserted.

The indictment was returned by a federal grand jury

in United States District Court in Chicago following two

years of FBI and grand jury investigation. , Related

matters remain under investigation.

The grand jury accused Hoffa of violating his duty as

a trustee of the $200,000,000 Pension Fund, by making

false and misleading statements to his fellow trustees

about persons seeking loans and by using his influence as

president of the Teamsters’ Union to obtain approval of the

loans.

Besides Hoffa, 50, who is president of Teamster Local

299 in Detroit as well as general president of the Inter-

national Brotherhood of Teamsters, the indictment named

these defendants:

—Benjamin Dranow, 55, former Minneapolis department

store executive who is now serving prison terms for mail,

wire and bankruptcy fraud and tax evasion at the Federal

Correctional Institution, Sandstone, Minn., and whose bail-

jumping conviction is now on appeal;

Abe I. Weinblatt, 67, Miami-Beach retired business-

man and former business associate of Dranow;

—S. George Burris, 65, a New York City accountant;

—Herbert R. Burris, 41, kis son, a New York City.

attorney ;

3 Hyman, 69, Miami Beach, a Key West, n

real estate operator;

Calvin Kovens, 39, Miami Beach builder and real estate

operator ;

78a

Zachary A. Strate, Jr., 43, New Orleans builder and

real estate operator. :

Dranow, S. George Burris, Hyman, Kovens and Strate

have been principals in or connected with companies which :

have received Pension Fund loans. The grand jury accused -

them and the other defendants of submitting false and

misleading information in support of loan applications.

The indictment charged all eight defendants with 20 .

counts of mail fraud, seven counts of wire fraud, and one

count of conspiracy to defraud the Pension Fund and to

obtain money from the funqͥ; through ‘‘false and fraudulent

pretenses.’’ "

The Fund’s full name is the Central States, Southeast

and Southwest Areas Pension Fund, with offices at 29

East Madison Street, Chicago. It was set up in March,

1955 and collects contributions from employers for retire-

ment, disability and death- benefits for more than 177,000

rank-and-file Teamsters in about 20 states. a

The Fund is administered by eight employer and eight

Teamster trustees. Hoffa was the only trustee indicted.

The eight defendants were charged with devising and

carrying out a — 2 to defraud the Pension Fund starting

sometime befor raly, 1958. '

Hoffa was charged with influencing the trustees to ap-

prove the loans sought by the other seven defendants for

themselves or others, and with referring prospective. bor-

rowers to the elder Burris. Kovens was charged with

referring prospective borrowers to Dranow.

The indictment said the Burrises and Dranow sought

out persons needing loans and represented themselves as

being in a favored position to obtain Pension Fund loans

because of their close association with Hoffa. *

Hoffa, the indictment said, used fraud, deceit, misrep-

resentation and overreaching’? and abused his position

79a

of trust as a trustee, by seeking to influence and obtain

approval of the loans.

The grand jury. said he personally familiarized himself

with loan lications prion to their application to the

trustees; personally presented applications to them; made

false representations and misleading statements to the

trustees and professional advisers; and spoke out and voted

in favor of the loans, in conference telephone calls as well

as at meetings. '

The eight defendants were charged with demanding and

receiving fees, stock options, and stock interests as com-

pensation for their services in obtaining the loans from

the Pension Fund.

The indictment cited 14 loans obtained by the defendants

for the financing of companies or for construction of hotels,

shopping centers and other projects in six states—Florida,

Louisiana, Alabama, Missouri, New Jersey, and California.

The false and misleading information submitted by

the defendants to the trustees assertedly included represen-

tations that Pension Fund loans were used for construction

or remodeling when, in fact, all or part of the loaned

funds had been spent for.‘‘other purposes.“

In one of these instances, the indictment said, the defen-

dants informed the trustees that $2,000,000 in loaned funds

was used for construction of a North Miami, Florida

hospital, while, in fact, ‘‘a substantial portion’’ of the funds

had been diverted.

In another instance, the defendants presented to the

Board that a corporation which had applied for a Pension

Fund loan had a net worth of more that $3,600,000 when

its actual net worth was less than $5,000, the indictment

said.

The indictment charged that one purpose of the fraud

scheme was to obtain money with which to pay off Sun

—

ee — — ——

80a

Valley’s debts and permit Hoffa to extricate himself from

its operations. .

In conjunction with return of the indictment, the Depart-

ment of Justice today will move in United States District

Court in Tampa, Florida to dismiss a 16-count mail and

wire fraud indictment of Hoffa involving Sun Valley,

returned October 11, 1961.

The motion states that aspects of the Sun Valley case

are necessarily embodied' in the new Chicago indictment.

According to the new indictment, 45 pereent of Sun

Valley’s stock was held in trust for Hoffa and another

person, no‘ named, and Hoffa had an option to purchase

an additional 45 percent.

At Hoffa’s direction, $400,000 of Local 299 funds had

been deposited in a non-interest bearing account in a

Florida bank as security for the bank’s loans to Sun

Valley, the indictment said.

In September, 1959, the court-appointed Board of

Monitors for the Teamsters challenged this deposit as

a breach of Hoffa’s fiduciary duties. Local 299 remained

unable to withdraw the $400,000, however, because of Sun

Valley’s financial difficulties.

The indictment alleged that Dranow—with Hoffa’s knowl-

edge and consent—set up the Union Land and Home

Company, Inc. to acquire the assets of Sun Valley, pay off

its debts, and thus secure the release of the Local 299

deposit.

The defendants were charged with using at least $100,000

of the money they assertedly diverted from Pension Fund

loans to help satisfy the Sun Valley debts and to permit

the withdrawal of the Local 299 deposit.

The indictment said the defendants obtained Pension

Fund loans involving:

8la

New Everglades Hotel, Miami; Fontainebleau Motor

Hotel, New Orleans; Key West Foundation ( Flagler Apart-

ments, Flagler Village Shopping Center, Ponciana Apart-

ments), Key West; Casa Marina Hotel, Key West;

LaConcha Hotel; Key West; Four-Three-O-Six Duncan

Corporation, St. Louis, Mo.; Cornell Buildings and Bev-

erly-Wilshire Health Club, Los Angeles; Miracle Plaza

Shopping Center, Vero Beach, Florida; North Miami Gen-

eral Hospital, North Miami; Miami International Airport

Hotel; Birmingham Airport Hotel, Birmingham, Alabama;

Causeway Inn, Tampa, Florida; and Club 300, Upper

Saddle River, New Jersey.

Hyman owns the con olling interest in Key West Found-

ation, LaConcha Hotel and Casa Marina Hotel. Strate

owned a controlling interest in Pelican State Hotels Cor-

poration (Fontainbleau Motor Hotel).

Kovens owns a controlling interest in Good Samaritan

Hospital, Inc. (North Miami General Hospital) and Miracle

Plaza Shopping Center, and S. George Burris owns a con-

trolling interest in First Berkeley Corporation (Cornell

Buildings and Beverly-Wilshire Health Olub).

The conspiracy count of the indictment charged the eight

men with combining to use the mails and wire communica-

tions to execute ‘‘a scheme and artifice to defraud’’ the

pension fund. The remaining 27 counts each related to a

telephone call or letter connected with specific loan applica-

tions to the trustees.

In addition to Hoffa, the present union trustees are:

Floyd C. Webb, Joplin, Missouri; Murray W. Miller,

Dallas, Texas; Gordon R. Conklin, St. Paul, Minnesota;

Roy L. Williams, Kansas City, Missouri; Odell Smith,

Little Rock, Arkansas; William Presser, Cleveland, Ohio;

and Frank E. Fitzsimmons, Detroit, Michigan. Fitsimmons

replaced Gene San Soucie, deceased Indianapolis union

official.

82a

The present employer trustees are: Albert D. Matheson,

Detroit, Michigan; Fred W. Strecker, Jr. St. Louis, Mis-

souri; Champ J. Madigan, Cleveland, Ohio; John A.

Murphy, LaCrosse, Wisconsin; Charles J. Morse, St. Louis,

Missouri; Thomas J. Duffey, Milwaukee, Wisconsin; John

Spickerman, Atlanta, Georgia; and Marvin Blakeney, Jr.,

Dallas, Texas. Duffey replaced Cyril Wissel, Dubuque,

Iowa; Spickerman replaced Joe Katz, Atlanta, Georgia;

and Blakeney replaced Kirke Couch, Shreveport, Louisiana.

Maximum penalty for each of the eight defendants would

be five years in prison and a $1,000 fine on each of the 27

substantive counts and five years and $10,000 on the Con-

spiracy count.