# Respondents Brief in Opposition — Annunziato v. United States (No. 404) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1245%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition - **Published:** January 1, 1961 ## Text Uffice-Supreme Court, uU.s. FILED LosRArey SUPREME COURT. y OCT 12 1%61 JAMES R. BROWNING. CLERK No. 404 & the Supreme Court of the United States OCTOBER Trrm, 1961 SALVATORE ANNUNZIATO, PETITIONER Vv. ; Unrrep STaTes oF AMERICA ON PBTITION FOR 4 WRIT OF CERTIORARI TO THE UNITED BTATRS COURT OF APPEALS FOR THE SECOND OIROUIT ‘BRIEF FOR THE UNITED STATES IN OPPOSITION ~ Attorney, Department of Justice, ‘ * Washington 25, D.O. , INDEX Opinion below. - i i Jurisdiction... __- ee = Questions presented. Statutes involved Stutement— — - Argument. -— - - Conclusion CITATIONS Causes: Aldridge v. United States, 283 U.S. 308... - Bailey v. United States, 53 F. 2d 982. __. - _- - Beatiy v. United States, 27 ¥. 8d 328. -.- 2 __- Beaver v. Taylor, 1 Wall. @7_...........-.. Brown v. United States, 150 U.S. 93... .__- Campbell v. United States, 365 U.S. 85_. __. Connelly v. United States, 249 F. 2d 576, cer-' tiorari denied, 356 U.S. 921... _ _. Costello v. United States, 255 F. 2d 389, cer- tiorari denied, 358 U.S. 830____.. __- es Costello v. United States, 350 U.S. 359_-_- . _. Glasser v. United States, 315 U.S. 60_- : Hitchman Coal «& Coke Co. v. Mitchell, 245 Holt v. United States, 218 U. S. 245... an Jencks v. United States, 353 U.S. 657... eS oe Lawn v. United States, 355 U.S. 339__._____- Logan v. United States, 144 U.S. 263. ._____- Mulloney v. United States, 79 F. 2d 566, cer- tiorari denied, 296 U.S. 658_.__.___.____- Mutual Life Insurance Co. v. Hillmon, 145 614744—61——1 (1) II Cases—Continued O’Connell v. United States, 40 F'. 2d 201, cer- Page tiorari dismissed, 296 U.S. 667...._._.__.. 9 Palermo v. United States, 360 U.S. 343_____- 16, 17 Rosenberg v. United States, 360 U.S. 367___- 14 St. Clair v. United States, 154 U.S. 134___. 13 Sellers v. United States, 271 F. 2d 475__-__-_- 10 United States v. Benjamin, 120 F. 2d 521-_--- 9 United States v. Cleary, 265 F. 2d 459, cer- tiorari denied, 360 U.S. 936......_____- 9 United States v. Compagna, 146 F. 2d 524, certiorari denied, 324 U.S. 867__._.______- 13 United States v. Goodman, 129 F. 2d 1009-__.- 13 United States v. Keenun, 267 F. 2d 118, cer- tiorari denied, 361 U.S. 863___._.______-_- 9 United States v. Kimball, 117 Fed. 156______- 9 United States v. Klein, 247 F. 2d 908, certiorari denied, 355 U.S. 924____.._.__..--_-__-- 9 United States v. Parker, 244 F. 2d 943, cer- tiorari denied, 355 U.S. 836..__.______.-- 9 United States v. Pile, 256 F. 2d 954. _______- 9 United States v. Pugliese, 153 F. 2d 497.____-_- 13 United States v. Scully, 225 F. 2d 113, cer- tiorari denied, 350 U.S. 897___.___._____- 9, 10 United States v. Thomas, 282 F. 2d 191___-__- 19 Van Riper v. United States, 13 F. 2d 961, certiorari denied sub nom. Ackerson v. United SR, Be ee Peo nee chances : 13 Statutes: Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519...............- 3 18 U.S.C. 3500. .....__--- 2, 3, 13, 14, 19, 17, 18, 19 a FE ak we nhdccaced secures 3, 4,12 Miscellaneous: Morgan, A Suggested Classtfication of Utter- ances Admissible as Res Gestae, 31 Yale L. Pee. TP te ss on cow eanebetencen sax 11 6 Wigmore, Evidence (3d ed., 1940), § 1725__- 11 Gn the Supreme Court of the United States OcToBER TERM, 1961 No. 404 SALVATORE ANNUNZIATO, PETITIONER Vv. UnitrAp STATES OF AMERICA GN PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (R.' 149-167; Pet. App. 3-20) has not yet been reported. JURISDICTION The judgment of the court of appeals was entered on July 26, 1961 (R. 168). stat. 519, 55. va 4 session of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. * * * e * (e) The term “statement’’, as used in sub- sections (b), (c), and (d) of this section in _ relation to any witness called by the United States, means— (1) a written statement made by said witness and signed or otherwise-adopted or approved by him: or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contempora- neously with the making of such oral statement. STATEMENT Count 1 of a two-count indictment, returned May 25, 1960 in the United States District Court for the District of Connecticut, charged petitioner with having received $300 on or about July 3, 1957 from the Terry Contracting Company (a firm whose em- ployees he represented), in violation of 29 U.S.C. 186 (b) and (d), supra (R. 1; Pet. App. 4). Count 2, which charged the receipt to a separate payment, was dismissed pursuant to a nolle prosequi and is no 5 longer involved.’ Following a trial by jury, petitioner was found guilty (R. 143). He was sentenced to one year’s imprisonment and to pay a fine of $2,500 and the costs of the prosecution (R. 2). The Court of Appeals for the Second Circuit affirmed (R. 149-168 ; Pet. App. 3-20). The evidence adduced by the government may be summarized as follows: In 1957 the Terry Contracting Company, a New York City concern, was engaged in constructing the Bridgeport Harbor Bridge, part of the Connecticut Turnpike (R. 3-4, 34, 39-40, 45). Petitioner was business agent for a local of the International Union of Operating Engineers, members of which were en- gaged in work on the site (R. 35-36). On or about July 3, 1957, at about 11 a.m., peti- tioner went to the office of the timekeeper for the bridge- construction project, located in a trailer, and inquired of the timekeeper, Walter Haas, and the job superin- tendent, Arthar Van Dommellen, whether ‘‘someone from New York was there to sce him” (R. 3-4, 7, 34, 37). Van Dommellen told petitioner that no one from New York was there then, but that he “expect[ed] Mr. Mayhew later’? (R. 37). William Mayhew, to whom Van Dommellen referred, was the Terry Com- pany’s chief engineer, in general charge of all its * Prior to trial the government filed an information charging petitioner with the same offense stated in count 2 of the indict- ment. Without objection, count 2 of the indictment was dis- missed and count 1 and the information were tried together. The jury acquitted petitioner of the charge contained in the information (R. 1; Pet. App. 4-5). 6 construction projects (R. 39-40). Petitioner told Van Dommellen that he would “wander around”’ and “he back’’ (ht. 37). A short while later, Mayhew arrived at the con- struction site with Philip Wolf, the chief estimator for the Terry Company (R. 7, 33, 41). Petitioner, returning to the office, was told by Van Dommellen that ‘*Mr. Mayhew and Mr. Wolf were in the office, if he wanted to see them’’ (R. 37). Petitioner entered the office and introduced himself to Mayhew (R. 41-42). Mayhew “attempted to introduce” petitioner to Wolf and invited him to a diner for a cup of coffee. Petitioner declined, saying that he was ‘“‘not interested in * * * coffee’? and that “This ain’t no_ social eall’”? (R. 8-9, 42). Mayhew, accordingly, attended promptly to “the business [he] had with him’ (R. 42)—the delivery of a sealed, three-by-five-inch, ma- nila envelope which the president of the Terry Com- pany, Harry Terker, had given to Mayhew in New York on the previous day with the request that he deliver it to petitioner (R. 8-9, 42-46, 99). Although Mayhew had not seen the contents of the envelope, he could tell from its “bulk” that it had ‘‘something in”’ it, between three-cighths of an inch and half an inch thick, which could be “flex[ed]’’ (R. 44-45, 47). Pe- titioner took the envelope and left (R. 43). Mayhew testified that Harry Terker, who was de- ceased at the time of the trial (R. 47), gave him the envelope in the company’s New York offices with the request that he deliver it to ‘‘the business agent for the operating engineers” on the Bridgeport project (R. 45, 99). Terker, in response to Mayhew’s inquiry wv 7 as to the purpose of the envelope, said that it was ‘‘for a commitment that [he had] made." Mayhew told Terker he “prefer[red] not to carry the cnvelope’, but agreed to do so when Terker persisted in his re- quest (R. 99). : Ralph Cohen, comptroller of the Terry Company, identified a cash voucher for $300, dated June 28, 1957, bearing Mavhew’s name and the notation ‘Job No. 719, Sundries” (R. 55-56, 59-61). The voucher was In Cohen's handwriting and was a company rec- ord, kept in the regular course of business (R. 59). Cohen identified ‘Job No. 719" as the Bridgeport Harbor Bridge project (R. 61). The voucher bore the further notation ‘‘Receipt of the above is hereby acknowledged’’, followed by Colen’s initials (R. 61). The document evideneed on its face, Cohen testified, that $300 in company funds had been given to May hew to enable Mayhew ‘‘to pay a sundry expense on the job’, which, to Cohen’s knowledge, meant ‘ta pay- ment to somebody for some purpose”’’ (R. 61-62, 64). Cohen did not deliver the money to Mayhew direetly, Cohen testified, since if he had done so he would have required Mayhew to sign the voucher, and Mayhew had not signed it (R. 65). Rather, Cohen testified, he pul the neeney in an envelope and gave it to Harry Terker, the president, whom Cohen did not always re- quire to sign the voucher in such instanees (R. 65, 69). Cohen further testified that Terker had told him that the purpose of the $3800 was ‘‘[f]Jor Mr. May- hew’s use to pay somebody * * * on the job” (R. 71). 614744-- 61——-2 Richard Terker, the secretary-treasurer of the Terry Company at the time of the offense and the son of Harry Terker (R. 77), testified to a luncheon conversation he had with his father in the latter part of June or the early part of July 1957 in which his father told him that petitioner had asked him for money in connection with the Bridgeport Harbor Bridge project and that he had agreed to send peti- tioner some (R. 80). The sum mentioned by his father, Richard testified, was $250 (R. 84). No evidence was adduced on behalf of the defense. ARGUMENT ; 1. Petitioner contends (Pet. 7-9) that the trial court erred in refusing to dismiss the indictment on the ground that when he was called before the grand jury he was a ‘‘de facto’? defendant, **[mJarked for prosecution’, but was not so advised. Assuming arguendo that he was a target of the grand jury in- quiry, there is no merit to the contention. As pointed out by the court of appeals (R. 153; Pet. App. 7), and as petitioner now concedes (Pet. 7), he was advised of his right to remain silent before he was taken into the grand jury room on his first ap- pearance before that body, and on his second and final appearance he claimed his privilege against self- ineriminatien witn the first question and repeated the elaim with every question that could possibly be in- eriminating. His rights as a witness who was himself an object of the grand jury's investigation were thus 9 fully protected!) There was no need for the govern- ment attorney to expand his warning by stating ex- plicitly that petitioner was under investigation, since the warning as worded carricd this reasonable impli- cation. This is net a case, moreover, In whieh the grand jury testimony of a witness, against whom an indictment is subsequently returned, ts used or souglit to be used against him at his trial. Ct. United States v. Keenan, 207 F. 2d 118, 126 (CoA. 7), certiorari denied, 361 U.S. 8603; Costello ve United States, 255 KF, 2d 389, 399-400 (CLA. 8), certiorari: demed, 358 U.S. 830; Connelly v. United States, 249 F. 2d 576, 58L (C.A. 8), certiorari demed, 356 U.S. 921. What petitioner seeks is outright dismissal of the indict- ment simply beeause of the alleged violation of his rigits as a grand jury witness who was himself sus- pect. In no event was he entitled to this. United States v. Cleary, 265 F. 2d 459 (CLA. 2). certiorari denied, 360 U.S. 936; United States v. Scully, 225 F. Cf. United States vo Neenan, 267 F. 2d 118, 126 (C.A, 7). certiorari denied, 361 U.S. S63; United States vo Clary, 265 F. 2d 459 (CLA. 2), certiorari denied, 360 U.s. 956: United States v. Pile, 256 F. 2d 954 (CLA, T): Costello ve United States, 255 F. 2d 889, 399-400 (CLA. 8S), certiorari: denied, 358 U.S. 830: Connelly ve United States, 249 F. 2d S76. 581 (CLA. &), certiorari denied, 356 U.s. 921: United Ntates ve Nein, 247 F. 2d 908, 920-921 (CLA. 2). certiorari denied, 355 U.S. 924: United States ve. Parker, 244 F. 2d 9438. 945-949 (CLA, 7), certiorari denied, 355 U.S. 836: United States ve Neully, 225 F. 2d 113 (C.A. 2), certiorari denied, 350 U.S. 807; United Ntates v. Benjumin, 120 F. 2d 521, 522 (Cu. 2) 3 Mulloney v. United States, 79 F. 2d 566, 578-580 (CLA. 1), certiorari denied, 296 U.S. 658: O'Connell v. United States, 40 F. 2d 201, 205 (CLA. 2), certiorari dismissed, 296 U.S. 667; United States v. A inball. 117 Fed. 156 (C.C.S.D.N.Y.). 10 2d 113 (C.A. 2), certiorari denied, 350 U.S. 897. Cf. Holt v. United States, 218 U.S. 245, 247-248; Costello v. United States, 350 U.S. 359; Lawn v. United oe 355 U.S. 339, 349-350. 2. There is likewise no merit in the contention (Pet. 9-11) that it was error for the trial judge to decline to ask the members of the petit jury panel, upon voir dire, whether any of them were members of or con- tributors to any organization having law enforcement as its object. The trial court has 1 broad discretion as to the questions to be asked prospective jurors. Aldridge v. United States, 283 U.S. 308, 310. While this discretion may, of course, be abused (see td., at 310-315; Sellers v. United States, 271 F. 2d 475 (C.A.D.C.)), there was no abuse here. It is one thing, as noted by the court of-appeals (R. 154; Pet. App. 8), for a judge to refuse to inquire whether any prospective juror belongs to an organization having as its special object the enforcement of the particular law under which the accused has been indicted. Cf. Beatty v. United States, 27 F. 2d 323 (C.A. 6) (pro- hibition) ; Bailey v. United States, 53 F. 2d 982 (C.A. 5) (same). It is another where the inquiry sought by the defendant relates to membership in an organiza- tion devoted to the improvement of law enforcement generally, which is che responsibility of every citizen. Petitioner, as the court below properly concluded (R. 154; Pet. App. 8), ‘‘cast his net too wide”. 3. Petitioner contends (Pet. 11-12) that Richard Terker’s testi ony that his father told him, some time prior to the alleged unlawful receipt of money by pe- titioner, that petitioner had asked him fur money and 11 that he had agreed to send petitioner seme Csapra, p. 8) was hearsay and inadmissible. We submit that the court of appeals correctly held CR. 155-162: Pet. App. 9-16) that this testimony was properly admitted hoth as a “declaration of the father’s intention” and as a “declaration of a co-conspirator” CR. 155; Pet. App. 9). The existence of a design or plan to do an aet is admissible to show that the aet was probably done as planned, and, under a well recognized exeeption te the hearsay rule, the plan or design may be sliewn by the person's own statements as to its existence, 6 Wigmore, Fridence (8d ed., 1940), 81725; Mutual Life Insurance Co, Vv. Fillmon, VAS US. 285. 295-296. * Petitioner's statement that “virtually the ertire case against [him] was an edifice built of hearsay testimony” (Pet. 1) 12) is unfounded. The only testimony besides Richard) Terker'- Whieh has been challenged (see Ro 1st: Pet. App. sy) was 1) Mayhew’s testimony that Harry Terker asked him to take the envelope which he received from Terker to Bridgeport so that Terker might keep a commitment he had made to petitioner (xuprt, pp. 6-7) and (2) Cohen's testimony that Harry Terker told him to draw $300 “[ flor Mr. Mayhew’s use to pay some- Dody oo am toe [ Bridgeport | job” Ty ee 7). The court below rightly held that these statements “fall so clearly within Professor Morgan's sixth class [of utterances admissi- ble as res gestae], ‘Cases in which the utterance is contempora- neous with a nonverbal act, independently admissible. relating to that act and throwing some light upon it’ [citing Morgan, 1 Suggested Classification of Utterances Adinvissthle o« Ris Gestac, 31 Yale L. Journ, 229, 236 (1922) ]. * * * that we do net need here to consider other possible grounds of admissibility” CR. 154-155; Pet. App. 8-9). See Bearer vi Taylor, 1 Wall. 637. 642. 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