UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
October 27, 1980
UNITED STATES of America
Michael MORRONE, a/k/a Mike Morrone, Ronald Turchi, a/k/a Ronnie Turchi, Gaeton Cassello, a/k/a Junior Cassello, Nicholas Spadea, a/k/a Nicky Spadea, David DiStasio, William Fox, a/k/a Bill Fox, Moderwell L. Kester, a/k/a Lee Kester
The opinion of the court was delivered by: DITTER
Three defendants, Michael Morrone, Ronald Turchi, and Moderwell Kester were convicted by a jury of nine counts of mail fraud, a violation of 18 U.S.C. § 1341. Morrone, Turchi, and Gaeton Cassello were convicted of racketeering, a violation of 18 U.S.C. §§ 1961-63, and of conspiracy to engage in racketeering, a violation of 18 U.S.C. § 1962(d). Their two co-defendants, William Fox and David DiStasio, were acquitted. Another co-defendant, Nicholas Spadea, was found to be incompetent to stand trial and the indictment against him was ultimately dismissed. Defendants have filed post-trial motions contending that they were prejudiced by pre-trial rulings, rulings during the trial, and errors in the charge to the jury. For the reasons which follow, their motions must be refused.
The evidence, which because of the verdict must be viewed in the light most favorable to the Government, showed that in 1975 Michael Morrone operated a diner in Philadelphia, employing Ronald Turchi, Gaeton Cassello, and Richard Coppola. Coppola was to become the chief Government witness at trial. In November, 1975, Morrone directed Coppola to assist Turchi and Cassello in the setting of a fire at the Archway Tavern, Front and Arch Streets, Philadelphia. Pursuant to these instructions, Coppola bought naphiho, a flammable liquid, and helped Cassello prepare paper fuses to spread the flames. The next day he drove Turchi and Cassello to the bar and carried the incendiary materials in through the rear entrance. He then left. Acting again on Morrone's instructions, Coppola picked up Turchi and Cassello later that evening. They told him they had set the fire. Coppola drove near the bar and could see the flames shooting out into the street. The next day, the three reported to Morrone the events of the night before. When Morrone directed Coppola to return and examine the building, Coppola saw that it had been heavily damaged by fire.
Several months later, Turchi and Coppola obtained work at Schmidt's Brewery where Morrone was employed in a supervisory capacity. One day, Coppola observed that Morrone and Turchi met with a man whose name Coppola later learned was Harry Bassion. Immediately after the meeting, Morrone told Coppola they had a big "score" coming up. Coppola interpreted this expression to mean that they would be involved in some significant criminal activity. Following another meeting between Turchi and Harry Bassion, which Coppola also observed, Turchi told Coppola they were planning the arson of a bar as soon as the occupants of rooms upstairs vacated the premises. Several days later, Bassion met Coppola and handed him the keys to the Blue Bell Bar, which was owned by the wife of William Fox. Coppola then delivered the keys to Turchi. In March, 1976, at Morrone's instructions, Coppola, Turchi, and Cassello drove to the bar and set it on fire. Coppola received $ 250. from Turchi for his participation in this crime. After the fire, and again at Morrone's direction, Coppola and Turchi met with Harry Bassion at the Continental Bank to obtain a loan. After Bassion co-signed the obligation, the bank issued a check to Coppola for $ 5,000. He cashed the check and together with Turchi gave the money to Morrone. Coppola did not repay the loan but from the bank's records, it could be inferred that Bassion did.
In January, 1977, the Commercial Office Supply Co., the sole occupant of Moderwell Kester's warehouse at 1150 East Orthodox Street, Philadelphia, told him of its intention to terminate its lease. Although he had hoped to sell the property for $ 125,000, Kester eventually accepted an offer of $ 65,000 with settlement scheduled for May 6, 1977. The original printed agreement of sale form provided that the parties' respective obligations would not be affected in the event of loss by fire. However, as a result of negotiations between Kester and the purchaser, it was agreed that in the event of fire or casualty loss, the contract would be considered automatically terminated.
A few weeks later, in April, 1977, Morrone told Turchi and Coppola that a big "score" was coming up. On April 28, 1977, Morrone, Turchi, and Coppola drove to one of the parking lots of the Philadelphia Zoo where, according to Morrone, they were to meet with the owner of the building which they were going to burn. After they had waited for about 45 minutes, Coppola got out of the car and remained at that parking lot while Morrone and Turchi drove to the Zoo's other parking lot. When they returned, Morrone said the "score" would be worth a quarter of a million dollars.
On Monday, May 2, 1977, acting upon Morrone's instructions, Turchi and Coppola went to the warehouse on Orthodox Street. They were to pick up a down payment from the owner and get the keys to the building. On the second floor of the building, Turchi and Coppola met a man, identified at trial by Coppola as Kester, who handed $ 5,000 to Turchi and also gave him the keys to the building. Later that day, Turchi and Coppola delivered the money to Morrone. On Wednesday, May 4, 1977, Morrone met with Turchi and Coppola at Schmidt's and told them to get the necessary materials and start the fire before Friday. Coppola and Turchi then got five large plastic containers of gasoline, and on Thursday, May 5, drove to the warehouse using a car Coppola borrowed from his girl friend, Pat Bressi. They hid the gasoline inside the building, but decided not to start the fire then because there were too many children playing nearby.
Late that afternoon, Turchi and Coppola returned to the warehouse with Nicholas Spadea, who also worked at Schmidt's. However, they decided there were still too many children near the warehouse to permit them to start the fire. Accordingly, the three men returned to Schmidt's and called Morrone. He came to the brewery and instructed a fourth man, David DiStasio, to go with the other three and to use a second car. The four paired up and set off in Coppola's and Turchi's cars. Spadea waited in Turchi's car several blocks from the warehouse, while the other three drove to the building in Coppola's car. While DiStasio remained in the car, Turchi and Coppola went into the building and poured gasoline on the floors. Coppola lit a match, but as the fire started, he was engulfed in flames. He was badly injured, but with Turchi's help got to the car after discarding much of his clothing. The four men returned to Schmidt's and Morrone was informed of what had occurred. At Morrone's direction, Coppola was taken to the home of Morrone's sister where he was treated by a doctor. Turchi and DiStasio then took Coppola to the home of Pat Bressi where he stayed during his period of recuperation.
The warehouse was not destroyed, but it suffered damage of about $ 20,000. Thereafter, Kester filed insurance claims which resulted in certain matters going through the mails. It was these mailings which formed the basis for the mail fraud charges on which Morrone, Turchi, and Kester were convicted. On December 13, 1977, two agents from the Bureau of Alcohol, Tobacco and Firearms (ATF), Harold C. Perlick and Robert Piccirilli, went to Kester's place of business and served a Grand Jury subpoena upon him. In addition, they talked with him about the fire. Kester admitted he had planned the fire with a stranger he met in a bar. Kester then told the agents he wanted to say nothing further prior to his talking with his lawyer. When the agents started to leave, Kester asked what he could do to help himself. The agents stated that if he decided to cooperate with the authorities, they would recommend that the court be made aware of that fact. Although Kester said he had been drinking, his demeanor and speech appeared to be normal to the agents.
I. All Defendants' Contentions
A. Coppola's "Recantation"
All defendants first contend that they should be granted a new trial because the principal witness against them, Richard Coppola, recanted. There is no merit in their position.
Like the defendants in this case, Coppola was indicted for mail fraud, racketeering, and conspiracy. He entered a plea of guilty to certain of these charges before the Honorable Joseph L. McGlynn, Jr., on December 1, 1978, Crim. No. 78-295-2. Sentence was imposed by Judge McGlynn on September 6, 1979. Thereafter, Coppola petitioned for leave to withdraw his plea of guilty, contending that he had been coerced by the Government into testifying falsely in the proceedings before me. Judge McGlynn conducted evidentiary hearings and after they were concluded on November 16, 1979, stated:
Well, I don't have any difficulty with this petition.
In this proceeding to withdraw his guilty plea, I think Mr. Coppola is lying in his teeth. His testimony is completely incredible. It's refuted by his statements before me at the change of his plea, by his statements given to the agents, by the agents themselves, and by Mr. Cole, by his testimony before Judge Ditter; all of these things convince me that this man is now lying. And, Counsel for Mr. Coppola asked me why he would do this? And, I have a pretty good idea why he would do this. I think he has been reached between the time that he testified before Judge Ditter in that other case, and now. And, I think that perhaps the Justice Department ought to look into it, and see if there has been any obstruction of justice or subornation of perjury.
In this instance, I have no difficulty in concluding that Mr. Coppola was not coerced, or forced, or in any way denied any of his rights in connection with his entering a guilty plea. He was fully advised of his rights by me, he acknowledged he understood them. He acknowledged the fact that his plea had to be free and voluntary. All of these factors were gone into at the time he changed his plea.
On April 22, 1980, Coppola pleaded guilty to conspiracy to obstruct justice, Crim. No. 80-144, before the Honorable Louis C. Bechtle. He admitted receiving $ 10,000. from a relative of one of the arson defendants. He used $ 5,000 to pay the attorney who represented him when he petitioned to withdraw his plea of guilty and retained $ 5,000 himself. See In re: Grand Jury Investigation (Subpoena to Nino V. Tinari), 631 F.2d 17 (3d Cir. 1980). He was then sentenced for this offense.
Both Judge McGlynn's findings and the subsequent events show that Coppola's recantation was procured and should not be credited. It cannot serve as the basis for post-trial relief for these defendants.
B. The Cautionary Instruction Concerning Turchi's Testimony
All defendants assign as prejudicial error my instructions that the testimony of Ronald Turchi should be received with caution and viewed with great care. Turchi's own contentions in this regard are the most detailed. In summary he argues that although he was not an accomplice, I gave the jury an accomplice instruction. He maintains that the policy reasons which require a cautionary charge as to accomplice witnesses who testify for the prosecution are inapplicable to witnesses who testify for the defense. Moreover he contends I implied to the jury that he was an accomplice and thus reduced the Government's burden to establish guilt beyond a reasonable doubt.
As is always the case, a portion of the charge about which complaint is made must be viewed in light of what took place at trial and in connection with the rest of the instructions. Turchi's challenge is to four paragraphs which dealt specifically with his credibility. It was prompted not only by Turchi's testimony, but also by counsels' summations.
Of the six defendants, only Kester and Turchi took the stand. Turchi said he first met Coppola in 1975. About a week prior to the fire he agreed to participate with Coppola in the burning of the Orthodox Street warehouse. He knew it would be criminal to do so, but wanted the money he said Coppola offered. On May 4, 1977, he and Coppola drove to the Orthodox Street property. On the way, Coppola explained what was going to happen. When they arrived, they took certain plastic containers of gasoline and trash bags with rolled up paper in them from Coppola's car and hid them in the warehouse.
The next morning they met and "went over a few things." Late in the afternoon, Coppola called him, and they drove to the warehouse. On the third floor they got the materials that Coppola had there. They spread them all around. Coppola poured gasoline and Turchi asked him if he knew what he was doing. Coppola replied that he did. They argued and Coppola said he was not going to start the fire. Nonetheless, he did so and at the same time set himself on fire. Turchi said he pulled Coppola's clothes off and drove him to Pat Bressi's house.
Turchi said that he had not been involved with Coppola in any acts of arson prior to that time nor since then. He specifically denied having anything to do with the fire at the Archway Tavern or the fire at the Blue Bell Bar.
Turchi denied seeing Kester or Fox prior to the trial, but testified he knew the other defendants. In the summer of 1975, he and Cassello rented a diner from Morrone and employed Coppola to run it. That arrangement continued until mid-1976 when Turchi went to work at Schmidt's brewery where Cassello and DiStasio also worked, Morrone was general manager, and Spadea dock supervisor. Later Coppola also came to work at Schmidt's, and at one time, Morrone fired them both, but then rehired them. Turchi said he had never engaged in any racketeering enterprises, mail fraud, or conspiracy with the other defendants. Morrone never gave him any order regarding any fire or arson, nor did he ever hear Morrone tell Coppola, DiStasio, or Cassello anything about a fire. He also denied seeing Kester at the warehouse, and receiving from Kester any money or the keys to the building.
Thus, Turchi denied the salient features of Coppola's testimony about the involvement of Morrone and Cassello in activities from which the jury could find them guilty of mail fraud and racketeering. His testimony absolved DiStasio and contradicted Coppola as to Kester. Turchi did, however, admit helping commit arson at the Orthodox Street warehouse. Of course, he was not charged with arson and his being involved with only one fire would not make him guilty of engaging in racketeering activities or conspiracy to do so. In short, Turchi not only denied his own guilt, but exculpated Morrone, Cassello, and DiStasio.
During his summation, counsel for each defendant attacked Coppola's credibility. In addition, DiStasio's lawyer argued that Turchi was to be believed because he had incriminated himself. Counsel for Morrone also contended that Turchi, who had exonerated Morrone, should be believed because his testimony had been corroborated and because he had subjected himself to the serious charge of arson.
Counsel for Turchi claimed that Turchi had no motivation to lie. He went on to say,
Ladies and Gentlemen of the jury, in the Commonwealth a felony in the first degree is punishable by a period of imprisonment for twenty years. In the Commonwealth of Pennsylvania starting a fire deliberately with the result of endangering human life by statutes of this State, Section 3301 of the Pennsylvania Criminal Code, is a felony of the first degree.
Mr. Turchi at great jeopardy to his own freedom and to his own future took the stand here to be vindicated by this jury for that which he did not do and in so protecting himself he admitted that which he has done.
I think that is a case of a man with every motivation to lie who has still told the truth. I submit to you that for that reason alone you should believe Ronald Tuchi, and you should believe that the fraud perpetrated on this jury has been Richard Coppola and you should, as Mr. Cole suggested if you believe Ronald Turchi, you should find him not guilty of all the charges. (emphasis added) (N.T. 14-180-81)
There was therefore presented to the jury the proposition that Turchi's credibility was established by his admitting he was an arsonist and thus that he and the other defendants should be found not guilty of the charges in this case.
Included with my instructions on credibility was an accomplice instruction as to Coppola.
I then turned to Turchi and said that although his testimony should also be received with caution and weighed with great care, standing alone it was sufficient to work the acquittal of any defendant on whose behalf he testified.
It was this portion of the charge which all defendants, but especially Turchi, claim was prejudicial error.
A defendant is competent to testify, and if he does so, his credibility is to be judged in the same way as that of any other witness.
A jury's privilege to take into consideration significant criminal activity in assessing credibility has long been accepted and is specifically recognized by Federal Rules of Evidence 609(a) and 608(b).
It follows that some instruction as to the possible effect of Turchi's criminality on his credibility was in order. The question then becomes whether these particular instructions were erroneous. Analysis and precedent show they were not.
In the first place, large discretion is vested in the trial judge as to the language to be used in an instruction. In forming a charge on the elements bearing on credibility, the judge is not to be bound to a hard and fast formula as to each phase of his charge, but it is proper to instruct the jury as to the matters which they may or should consider in determining the questions involved. United States v. Rajewski, 526 F.2d 149, 160 (7th Cir. 1975), cert. denied, 426 U.S. 908, 96 S. Ct. 2231, 48 L. Ed. 2d 833 (1976).
Secondly, as was said in the charge approved by the Supreme Court in Hoffa v. United States, 385 U.S. 293, 312 n. 14, 87 S. Ct. 408, 418 n. 14, 17 L. Ed. 2d 374 (1966),
All evidence of a witness whose self-interest is shown from either benefits received, detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.
Turchi was plainly motivated by self-interest. Had his testimony been accepted, it would have exonerated him and three of his co-defendants. It was no slip of the tongue or editorial nicety when his counsel announced, "Your Honor, we call the defendant Ronald Turchi." (emphasis added, N.T. 13-210).
In view of Mr. Turchi's claim to have been Coppola's accomplice to the state crime of arson, those opinions which deal with an accomplice who testifies for the defense are instructive. The leading case is United States v. Nolte, 440 F.2d 1124 (5th Cir.), cert. denied, 404 U.S. 862, 92 S. Ct. 49, 30 L. Ed. 2d 106 (1971). There it is said,
Nolte insists, however, that the instruction may only be given when an accomplice testifies for the prosecution, and not when he testifies in behalf of the defendant. We disagree. It is clear that an accomplice's credibility may be suspect, regardless of whether he testifies for the prosecution or the defense. Moreover, the trial judge's decision whether to give the instruction is not a matter requiring constitutional scrutiny. At most, it is "merely a part of the general conduct of the trial, over which the judge's powers are discretionary like his control over cross-examination, or his comments on the evidence." United States v. Becker, 2 Cir. 1933, 62 F.2d 1007, 1009; accord, Lyles v. United States, 5 Cir. 1957, 249 F.2d 744, 746, cert. denied, 1958, 356 U.S. 931, 78 S. Ct. 773, 2 L. Ed. 2d 761. Whether an accomplice testifies for the prosecution or, as here, for the defense, it is within the trial judge's discretion to instruct the jury to accept an accomplice's testimony with caution. (emphasis added) 440 F.2d at 1126-27.
United States v. Urdiales, 523 F.2d 1245, 1248 (5th Cir. 1976), cert. denied, 434 U.S. 1071, 98 S. Ct. 1253, 55 L. Ed. 2d 774 (1978) and United States v. Simmons, 503 F.2d 831, 837 (5th Cir. 1974), are to the same effect. In United States v. Mitchell, 385 F. Supp. 1190, 1193 (D.D.C.1974), aff'd, 181 U.S. App. D.C. 254, 559 F.2d 31 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977), Judge Sirica ruled that if an unindicted co-conspirator had been called as a witness for the defendant, the testimony of that witness would be subject to the instruction that it should be received with caution and scrutinized with care. The accomplice instruction in E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 17.06 (3d Ed. 1977), includes the suggestion that a jury be told that the testimony of an accomplice "is always to be received with caution and considered with great care." As the authors point out in section 17.06, page 533, this instruction can be used whether the accomplice testifies for the prosecution or for the defense.
A variety of cases state that three policy reasons support the cautionary instructions given when an accomplice testifies: his testimony is of extreme importance, he has admitted his part in criminal activity, and he has a motive to lie. These same reasons applied to Turchi, and although I did not tell the jury that he had a motive to lie, I did explain that his testimony should be looked upon with particular care because of its significance and because he admittedly had been involved in criminal activity. Of course, I did not stop there: I also told the jury that Turchi's testimony alone could raise a reasonable doubt or be substantive evidence of innocence. I told the jury that although it could look for corroboration, it was not necessary and that Turchi's unsupported testimony could bring about an acquittal of any defendant for whom he testified. This provided the "fair and balanced perspective as context for deliberation" suggested by United States v. Lee, 165 U.S. App. D.C. 50, 506 F.2d 111, 123 (D.C.Cir. 1974), cert. denied, 421 U.S. 1002, 95 S. Ct. 2403, 44 L. Ed. 2d 670 (1975). See also United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979), cert. denied, 444 U.S. 1082, 1082, 100 S. Ct. 1037, 1320, 62 L. Ed. 2d 767, 767 (1980).
In a somewhat different context, the Third Circuit has recently said a trial court should instruct the jury that it can either convict or acquit on the basis of accomplice testimony. United States v. Armocida, 515 F.2d 29, 48 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), citing Cool v. United States, 409 U.S. 100, 103 n. 4, 93 S. Ct. 354, 356 n. 4, 34 L. Ed. 2d 335 (1972). Based upon these cases and United States v. Stulga, 531 F.2d 1377 (6th Cir. 1976), a failure to give some instruction as to Turchi's testimony-for example, as I did, that it "may be sufficient standing alone without corroboration" to work the acquittal of the defendants who benefitted from it-might well have been cited as plain error. The instruction I gave was balanced and eminently fair.
Turchi complains, however, that I implied he was an accomplice in the crimes charged in the bill of indictment and thus impaired the requirement of proof beyond a reasonable doubt. There was no such statement.
What I did say was that if Turchi's testimony was believed, it showed he and Coppola were accomplices in the commission of arson, which was exactly the basis on which defense counsel said his testimony was of enhanced credibility. I did not even suggest he was an accomplice to the crimes charged, but only that his testimony required special attention. Turchi argues, however, that since I told the jury that the testimony of a claimed accomplice (Coppola) was to be received with caution and weighed with great care and since I said that Turchi's testimony was to be received with caution and weighed with great care, that I was saying that Turchi was an accomplice. Logically and legally, this argument is fallacious. Logically, the argument could only be persuasive if the jury had been specifically charged that only the testimony of accomplices-and no other persons-was to be received with caution and weighed with great care. Of course, no such instruction was given. The argument is untenable legally because it depends upon the accuracy of the claim that the "receive with caution and weigh with great care" instruction applies only to accomplices. Such is not the case. Cautionary language of the type used has been mandated by the Third Circuit for identification witnesses under certain circumstances, United States v. Barber, 442 F.2d 517, 528 (3d Cir.), cert. denied, 404 U.S. 846, 958, 92 S. Ct. 148, 327, 30 L. Ed. 2d 83, 275 (1971), and for perjurers, United States v. Margolis, 138 F.2d 1002, 1004 (3d Cir. 1943). In addition, it has been said, there is no significant difference between the cautionary instructions to be used for accomplices and those for immunized witnesses, United States v. Morgan, 555 F.2d 238, 243 (9th Cir. 1977), or for informers, United States v. Gonzalez, 491 F.2d 1202, 1207 (5th Cir. 1974). Such instructions should also be given, even though unrequested, as to the testimony of an addict-informant, United States v. Kinnard, 150 U.S. App. D.C. 386, 465 F.2d 566, 572 (D.C.Cir. 1972).
In light of the many instances when an instruction of this type may and should be given, there is no merit in the argument that it was prejudicial here.
C. The Supplementary Instruction
All defendants object to the supplementary charge which I gave when the jury reported that it was unable to reach any verdict with respect to any defendant. At that time, the jury had been deliberating for a little less than ten hours. The objection is not to the fact that supplementary instructions were given but to their content. In essence,
I told the jurors to see if they could agree on anything, it was an important case, they should consult with each other, and should reach unanimous verdicts if possible to do so without violence to individual conscience. Having heard these instructions, the jury continued its deliberations and after about five hours, returned verdicts finding Morrone, Turchi, and Cassello each guilty on 11 counts and not guilty on eight counts, Kester guilty on nine counts, while William Fox and David DiStasio were found not guilty on the eight and nine counts respectively which faced them.
Defendants contend that the supplemental charge was incorrect and improper because it ignored an order of the Court of Appeals in United States v. Fioravanti, 412 F.2d 407 (3d Cir.) cert. denied 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969), and approved in United States v. Alper, 449 F.2d 1223 (3d Cir. 1971) cert. denied 405 U.S. 988, 92 S. Ct. 1248, 31 L. Ed. 2d 453 (1972).
They also say it was prejudicial and coercive under the rationale of United States v. Burley, 460 F.2d 998 (3d Cir. 1972), because it emphasized the importance of the case and its costs to the parties, thus suggesting the jury should consider extraneous matters rather than the evidence in making its decisions.
An analysis of these allegations show they simply are not so, that if there was error it was harmless, that the words were not inherently coercive, and that the verdicts demonstrate there was no coercion in fact.
In the first place, this was not an Allen
charge because there was no suggestion that the minority should defer to the opinions of the majority, the key element of such an instruction. This means that a host of cases which talk about the coercive effect of an Allen charge are not applicable to the issues here.
The three paragraphs which the defendants say were coercive and prejudicial were taken from 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, Section 18.14 (3d ed. 1977). Neither these words nor any words like them were before the Third Circuit in Burley, Alper, or Fioravanti. They have, however, been considered by other courts and have been found an appropriate way to encourage jurors to pursue their deliberations toward a verdict, if possible, so the expense and delay of a new trial will be avoided. United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977), cert. denied 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978), citing United States v. Bermudez, 526 F.2d 89, 100 (2d Cir. 1975) cert. denied 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed. 2d 793 (1976).
These words were implicitly approved by the Supreme Court in Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249 (1952). Though not explicitly addressed, the Supreme Court said other matters were "either insubstantial or were so adequately disposed of by the Court of Appeals that we give them no notice." Id. at 744, 72 S. Ct. at 966, 96 L. Ed. at 1269. And indeed, the words in question, and the traditional Allen instruction that jurors holding the minority viewpoint should consider the logic of those in the majority, were before the Ninth Circuit. See Kawakita v. United States, 190 F.2d 506, 524 (9th Cir. 1951). A charge pointing out that "some jury some time will have the duty to decide this case, and I hope that you, as the jury in this case, will be able to decide this matter." (emphasis supplied by Court of Appeals), as well as the Allen instruction to the minority, were before the court in Fulwood v. United States, 125 U.S. App. D.C. 183, 369 F.2d 960 (D.C.Cir. 1966), cert. denied, 387 U.S. 934, 87 S. Ct. 2058, 18 L. Ed. 2d 996 (1967), where Judge Burger (now Chief Justice) said such instructions were a carefully balanced method to remind jurors of their elementary obligations which they can lose sight of during protracted deliberations. See also United States v. Zicree, 605 F.2d 1381, 1390 (5th Cir. 1979) cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); United States v. Papadakis, 510 F.2d 287, 298-99 (2d Cir.), cert. denied, 421 U.S. 950, 95 S. Ct. 1682, 44 L. Ed. 2d 104 (1975); United States v. Ringland, 497 F.2d 1250, 1253 (8th Cir. 1974); Hale v. United States, 435 F.2d 737, 739-40 (5th Cir. 1970) cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971); United States v. Wynn, 415 F.2d 135, 136 (10th Cir. 1969), cert. denied 397 U.S. 994, 90 S. Ct. 1133, 25 L. Ed. 2d 402 (1970).
In the second place, the words in question were not coercive. The danger in supplemental instructions is that a minority of the jury may be persuaded against its will and thus the unanimity rule diluted. The pressure usually arises from language which suggests that the minority should reconsider its views, that a verdict should issue within a short period of time, or that some jurors are misbehaving by refusing to join an otherwise unanimous decision. United States v. Cheramie, 520 F.2d 325, 329-31 (5th Cir. 1975). Telling the jurors they had to agree was found to be coercive in Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 1060, 13 L. Ed. 2d 957 (1965). Jurors should not be told that a failure to agree would be regarded by the public as reflecting upon the jurors' intelligence or integrity, nor should they be pressured by being told the issues are easy, the court has a backlog, and retrial makes no sense. United States v. Thomas, 146 U.S. App. D.C. 101, 449 F.2d 1177, 1183-84 (D.C.Cir.1971). Stubbornness in the jury box should not be criticized. Powell v. United States, 297 F.2d 318, 320 (5th Cir. 1961). Saying that absolute certainty cannot be expected may be construed as weakening the quantum or quality of the proof required. See United States v. Silvern, 494 F.2d 355 (7th Cir. 1973); United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971).
I told the jurors none of these things.
What I did say was that they had a duty to decide this case if it could be done without violence to individual conscience and I told them why. There is nothing wrong with a jury's being told it has a duty to decide. In Fioravanti, supra, for example, the trial judge told the jury, "It is your duty, however, to agree if possible." 412 F.2d at 414. The Court of Appeals found no error in that comment, and to the contrary, recommended that if jurors are instructed to consult with each other they be told, "It is your duty ... to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment." 412 F.2d at 420.
Surely if jurors can be told there is a duty to decide-not just the easy cases, but difficult ones, the ones that require diligent, conscientious effort, there is nothing wrong with reminding them that a particular case is important to those involved. I reject the idea that jurors are too stupid to know that what they do or do not do will have an impact on society and on defendants. And this includes failing to decide a particular case. The ability of the judicial system to function is not served by turning away but by facing-not by deferring but by deciding-not by abdicating but by acting. There is nothing wrong with a jury's being asked to continue its deliberations so long as it is clear that each member has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial by refusing to agree. Hale v. United States, 435 F.2d 737, 741 (5th Cir. 1970), cert. denied 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971).
A judge's warning that under no circumstances must any juror yield his conscientious judgment makes use of even the Allen charge proper and not coercive. United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977), cert. denied 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978). I told the jurors the importance of individual judgment six times. I said these matters should be decided if it could be done "in good conscience." (para. 3); "if you can do so without violence to your individual conscience" (para. 4); "if you can do so without violence to individual judgment" (para. 6); and "if you can conscientiously do so" (para. 7). I also said that "you should not surrender your honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict to us ... in the final analysis, each of you must decide each of these matters for himself or herself." (para. 7) It is not coercive to tell a jury to try to reach a verdict if they are told they are not required to do so. Government of Virgin Islands v. Gereau, 502 F.2d 914, 936 (3d Cir. 1974), cert. denied 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975).
There was no coercion.
The instructions I gave did not contravene directions given by the Third Circuit as an examination of its recent cases plainly shows. The leading Third Circuit case on the Allen charge is Fioravanti, supra. There the trial judge had used the traditional Allen language directing jurors in the minority to distrust their own judgment. Although the district court was affirmed, Judge Aldisert said at 412 F.2d at 420:
Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced in any way by an Allen Charge.
In footnote 32 on the same page there was a suggestion that if there is any disposition to instruct jurors to consult with each other, that it be done in language which was then quoted. I followed this language-though not verbatim in telling the jurors to consult with each other. See supplemental instructions, paragraphs 6 and 7, N.T. 16-7 and 16-8.
Alper, supra, and Hernandez, supra, both reiterated what had been said in Fioravanti, but did not go beyond it. Since I used neither the language nor the precepts condemned in Fioravanti and did use those recommended, its directions were not violated. Defendants place their greatest reliance on United States v. Burley, 460 F.2d 998 (3d Cir. 1972). There the trial judge received two notes which said there was one juror who refused to deliberate because she felt the witnesses were not to be believed and because of her understanding of reasonable doubt. With the matter in that posture and after the jury had been deliberating for about four hours, the trial judge had the jury brought back to the court room and repeated his charge on reasonable doubt. He also reviewed the testimony of identification witnesses indicating, at least inferentially, that it seemed to be strong and persuasive. Finally, he told the jury,
Another thing you should bear in mind is this: If this jury cannot agree, the case is going to have to be tried again. It took almost a week-did take a week-and all those witnesses are going to have to be called back to testify again. They will be subject to examination, cross-examination, and so forth. So, it is not an insignificant event when a jury does not agree in a case like this. It can produce great additional expense to the government and additional-well, I think I have said enough. 460 F.2d at 999.
Judge Hastie, speaking for the Court, said that if reasonable doubt persists a juror's duty is to vote for acquittal and that the possibility of a hung jury and retrial are not relevant to that determination. He pointed out that the trial judge had failed to say that no juror should vote contrary to his best judgment because of the judge's views. He also added that there should be a clear statement of each juror's responsibility to exercise independent judgment.
As I have previously observed, my supplemental instructions repeated six times the admonitions that individual conscience and judgment must prevail. Anything I said about retrial was mere surplusage.
My instructions did not review the evidence, as was done in Burley, nor were they directed at one person who was holding out for acquittal. The circumstances and the charge in Burley simply bear no resemblance to the circumstances and the charge in the instant matter.
Finally, the time that elapsed between the giving of the supplemental charge and the jury's verdicts, and the verdicts themselves, show that there was no coercion.
After receiving my instructions, the jury continued its deliberations for a little more than five hours. This shows there was ample time for thoughtful consideration and the absence of coercion. United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert. denied 396 U.S. 832, 90 S. Ct. 86, 24 L. Ed. 2d 82 (1969) (three hour lapse); United States v. Stewart, 513 F.2d 957, 959 (2d Cir. 1975) (six hour lapse); United States v. De Stefano, 476 F.2d 324, 337 (7th Cir. 1973) (four hour lapse); United States v. Singletary, 562 F.2d 1058, 1061 (8th Cir. 1977) (one and one-half hour lapse). On the other hand, a time lapse of a few minutes would show a coercive effect. United States v. Rogers, 289 F.2d 433, 437 (4th Cir. 1961).
The verdicts themselves show the absence of coercion. Morrone and Turchi were found not guilty of eight of 19 counts, Cassello was found not guilty on eight of ten counts, while Fox and DiStasio were found not guilty on all counts. See United States v. Pope, 415 F.2d 685 (8th Cir. 1969), cert. denied 397 U.S. 950, 90 S. Ct. 973, 25 L. Ed. 2d 132 (1970).
II. Kester's Additional Arguments
A. The Absence of Miranda Warnings and the Destruction of Interview Notes
The first two reasons advanced by Kester for post-trial relief grow out of testimony given by ATF Agent Harold C. Perlick as to a conversation which he said he and Agent Robert Piccirilli had with Kester on December 13, 1977. According to Perlick, Kester made certain incriminating statements. Kester first asserts Perlick's testimony should have been suppressed because no Miranda warnings were given, and secondly, that the indictment against him should have been dismissed because Perlick did not retain his rough notes of interview as required by United States v. Vella, 562 F.2d 275 (3d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 2d 779 (1978). See also United States v. Niederberger, 580 F.2d 63, 71 (3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651 (1978); United States v. Harris, 560 F.2d 148 (3d Cir.), cert. denied, 434 U.S. 986, 98 S. Ct. 614, 54 L. Ed. 2d 480 (1977); and United States v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421 (D.C.Cir. 1975).
The first issue, that concerning the failure to give Miranda warnings, was previously raised by a pretrial motion to suppress. An evidentiary hearing was held, after which I entered an order, incorporating findings of fact and conclusions of law, and refused the motion. There is nothing I can add to that order. It is attached as an appendix to this opinion.
Kester's second reason is somewhat ambiguously phrased in his post-trial motions and brief. What he says is that Agent Perlick should not have been permitted to testify about the December 13, 1977, statement when it was determined his rough interview notes had been lost or destroyed after a formal report of interview was prepared. The problem is that the destruction of the notes was revealed by the cross-examination of Perlick only after he had testified as to his conversation with Kester. Since I believe Kester's intention is plain, I shall treat his motion as an assertion that Agent Perlick's testimony should have been stricken or that the indictment should have been dismissed once it was established that the interview notes had been destroyed.
In Vella, supra, the Court of Appeals stated explicitly
To avoid future misunderstandings, we specifically adopt the precepts announced in United States v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421 (1975), as the law in this circuit, to wit, the rough interview notes of F.B.I. agents should be kept and produced so that the trial court can determine whether the notes should be made available to the appellant under the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), or the Jencks Act.
562 F.2d at 276. Although the language of Vella is obligatory, Niederberger, supra, in construing it held that when there was no bad faith by the Government and no specific pretrial request by the defendant, the district court's refusal to strike testimony and refusal to grant a new trial were not errors because even had the testimony of the Government agent been excluded, there was sufficient evidence to convict.
Vella specifically adopted the precepts announced in United States v. Harrison, supra. Harrison, in turn, relied on United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642 (D.C.Cir. 1971), which interpreted Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to require that "in framing their rules for evidence preservation, investigative agencies must define discoverable evidence very broadly, including any materials that "might' be "favorable' to the accused." 439 F.2d at 652 n. 21. Bryant, however, predated United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), which held that where there has been only a general request for exculpatory material,
or no request at all, the proper Brady test for a reviewing judge is whether the omitted evidence would create a reasonable doubt that did not otherwise exist. This means the Government's omission to provide information must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. 427 U.S. at 112-13, 96 S. Ct. at 2402. Thus when a court reviews the effect of a failure to preserve possible evidence, the broad rule announced by Bryant must be considered to have been modified by Agurs and Niederberger. I conclude therefore, that if a Government agent has failed to follow Vella, in the absence of bad faith on the part of the Government, the appropriate test is whether the notes that were not preserved would have created a reasonable doubt which otherwise did not exist.
In the instant case, there was no evidence of bad faith or any improper reason for the destruction of the notes. Vella was decided on September 19, 1977, less than three months before Perlick's December 13, 1977, interview with Kester. From all that appeared neither the ATF in general nor Perlick in particular was aware of the Vella decision. In part, this may be attributable to the wording of Vella, which addressed itself only to the F.B.I. While it would be fatuous to contend (and the Government does not do so) that once the Vella rule had been made known to ATF, its agents could destroy their rough interview notes, nonetheless, it is entirely possible that ATF was less likely to know of Vella because it was specifically directed to the F.B.I. In Harrison, supra, it was recognized that a direction to a police department differed from a direction to the F.B.I. Just as the court in Harrison refused to attribute any bad faith to the F.B.I. for destroying notes when only the police had been directed not to do so, 524 F.2d at 434, I shall attribute no bad faith to Agent Perlick or to the ATF, particularly in view of the time sequence here.
The possibility that Agent Perlick's rough notes would have helped Kester is remote. Although he denied any culpability in the fire at his Orthodox Street warehouse, Kester admitted that he told Agent Perlick many of the things about which Perlick had testified. (N.T. 13-166-74; 13-190-93) He claimed to have done so because he had had seven or eight martinis earlier that afternoon and was intoxicated. (N.T. 13-85) He was not totally sober when the agent arrived. (N.T. 13-88) He was half lit (N.T. 13-92), was under the weather, was drunk (N.T. 13-169), and was half drunk (N.T. 13-195). In addition, he was scared and upset (N.T. 13-90, 91, and 195), the agents put words in his mouth (N.T. 13-91, 165, and 167), he was afraid he was going to be beaten up (N.T. 13-175) or have a stroke (N.T. 13-169), and he just said anything to get rid of Perlick (N.T. 13-164, 166, and 174). However, he also testified that after receiving appropriate warnings and with his attorney available to him, he appeared voluntarily
and repeated to the Grand Jury the things he had told Agent Perlick (N.T. 13-175, 182).
Kester argued at trial that the preservation and production of Agent Perlick's rough notes might have been helpful in impeaching Perlick as to the date he interviewed Kester (N.T. 13-152; 171-73).
Analysis shows, however, that while the notes might have impeached Kester, it is highly unlikely that they would have impeached Agent Perlick. Admittedly, on the date of the interview, Agent Perlick served Kester with a Grand Jury subpoena. On its face, this subpoena shows it was served on December 13, the date shown on Agent Perlick's formal report of interview. Both Perlick and Kester testified the interview took place on that date. (N.T. 10-108; 13-82). It is unlikely Agent Perlick would have put one date on the subpoena and another on his formal report of interview. This is particularly true since the date of the interview became significant only after Kester testified during trial.
The issue as to the date of interview came up in this way. During cross-examination at the suppression hearing, Agent Perlick was asked if Kester had told him one of his trucks had been destroyed "earlier that morning." Perlick said he recalled being told "something about an accident." (Hearing of May 22, 1979, N.T. 18) Kester then testified the accident had occurred that morning (N.T. 47, 56), i. e., the day the agents were there. (N.T. 57) It was partly because of the truck accident earlier that day that he drank so many martinis. (N.T. 58) As he told the Grand Jury, he was drinking heavily that day because "this truck thing upset" him. (N.T. 60) Again at trial the matter of the truck accident was originally brought up during Agent Perlick's cross-examination by Kester's counsel:
Q. ... After this interview was over, sir, did he say something to you about a truck accident?
A. I think he mentioned an accident.
Q. You think? Come on, you know he did, don't you? ... Didn't he tell you that that morning when he had come to work on the 13th of December he had been told by one of his employees that a brand new truck of his had run into a tree and totally destroyed it?
Did he tell you that?
A. I believe he did, yes, some words to that effect. I don't remember specifically whether it was a new truck, but I think he said there was an accident that morning.
Q. And he was very upset about it.
A. He said that, yes.
Q. And at lunch time that day he had gone out, had lunch and drank martinis and had too many.
Didn't he tell you that?
A. He said he was drinking that day.
Kester then testified that he was very distressed on December 13, 1977, because a stupid driver had had an accident with a brand new truck. (N.T. 13-82, 83, 85, 143, 144, and 157). That was the reason he was upset that day (N.T. 13-145, 148), i. e., the day the agents came to interview him. (N.T. 13-150, 152) There were no other accidents involving his trucks about then. (N.T. 13-146)
However, when Kester was shown a report, containing information he said he had provided to his insurance agent which showed the accident had occurred on December 12, 1977, he began to waiver about whether the accident and the interview were on the same date. (N.T. 13-157) He then said he did not know the date of the accident (N.T. 13-162), and finally, that on the day of the interview, all he told the agents about the accident was that the truck had been towed to his garage that morning. (N.T. 13-195) He then accused the Government of having originally said the accident was on December 13 (N.T. 13-161), a charge that quite simply was not true.
It was because of the question as to whether the accident and the interview had been on the same date that Kester's counsel wanted the original interview notes. It was obvious, however, from the time Kester's counsel first raised the question during cross-examination at the suppression hearing, Perlick had not thought that what Kester may have said about the truck accident was of sufficient importance to record it. If indeed there had been no notation, the destruction of Perlick's notes was unimportant. If, on the other hand, Agent Perlick's notes had had some notation in this regard, they might have confirmed one of Kester's versions of what occurred on the morning of December 13, 1977, but refuted another.
What Perlick's notes might have said did not go to the issue of guilt or innocence per se, but to Kester's credibility. Of course, Kester's credibility was paramount, but the jury had ample opportunity to judge it from his extensive testimony. I conclude that the missing notes would not have created a reasonable doubt of Kester's guilt.
B. Jury Sequestration
Kester also argues that two errors were committed insofar as the jury was concerned; first, that it should not have been sequestered, and second, the whole panel should have been excused because one of the veniremen made a remark about a defendant.
The jury was sequestered on motion of the Government. Although Kester contends he objected to the grant of that motion, I do not remember that he did so and the record is silent in that regard.
Assuming he did object, there is no merit in his position. The case had had considerable pre-trial publicity and during trial received press and radio coverage. The wisdom of hindsight shows that it was a good idea to insulate the jury from news reports. During the trial, there was a fire in an old factory building, which like Kester's warehouse, was empty. This fire received considerable press coverage and while there was no connection between it and the trial, the fact remains that if the jurors had seen newspaper articles concerning it, they may well have reacted unfavorably to the defendants. The sensitivity of the defendants to matters of this sort was demonstrated during voir dire. At that time-and at the request of one of the defendants-I asked the veniremen
Have you, or has any member of your family or close friend ever been a fireman, or worked for a fire department, including a volunteer fire department, for a fire marshall, or for any fire-investigating body?
Had the jurors seen the articles about the fire, which stressed the impact on the neighborhood,
the defendants would now be doubtless contending the jury should have been sequestered.
Jury sequestration is a matter for the exercise of the district court's discretion. It is proper despite a defendant's objection. The reason for this rule is plain; the public, as well as the accused, has a substantial interest in having guilt or innocence decided by a jury free from prejudicial influences. United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31 (D.C.Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977); Baker v. United States, 131 U.S. App. D.C. 7, 401 F.2d 958, 968 (D.C.Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970); United States v. Holovachka, 314 F.2d 345, 351-53 (7th Cir. 1963).
C. The Mafia Comment
Kester also contends the entire panel should have been excused because one of the veniremen said, "It looks like the Mafia is here." (See Partial Transcript, Voir Dire, July 16, 1979, p. 5). I denied the defendants' motions but did excuse the juror who had made the offending remark. In addition, each member of the panel was immediately questioned separately to see if any of them had heard it. Only two had-and there was no motion to excuse either. One was struck by the Government; the other served as an alternate juror but did not participate in the deliberations that lead to verdicts. Having questioned all the members of the panel, I was satisfied there was no prejudice and therefore permitted the selection process to continue. See United States v. Giacalone, 588 F.2d 1158, 1162-64 (6th Cir. 1978), cert. denied 441 U.S. 944, 99 S. Ct. 2162, 60 L. Ed. 2d 1045 (1979) and cases there cited. The problem is United States v. Pantone, 609 F.2d 675 (3d Cir. 1979), was far more serious than that in the instant case.
There, during a voir dire respecting potentially prejudicial publicity which circulated during the trial, one of the jurors revealed that another had said it sounded as if all the defendants were guilty. The trial judge immediately questioned the jurors, just as I did the entire panel. In refusing to find error, Judge Gibbons speaking for the Court of Appeals said,
The judge immediately held a corrective voir dire during which all jurors stated that nothing had occurred which would influence the verdict or their impartiality. The trial court is obviously in a better position to observe the impact of premature jury discussions of guilt, and to make a considered judgment as to the effectiveness of a cautionary instruction. Our consideration of the entire voir dire, which suggests that the impact of the two remarks was rather inconsequential, and of the promptness and care with which the trial judge conducted the inquiry, convinces us that his refusal to grant a mistrial was not an abuse of discretion. Certainly the occurrence of the conversations referred to is not ground for an automatic mistrial, and no showing of any likelihood of actual prejudice has been made on this record. See United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S. Ct. 62, 42 L. Ed. 2d 61 (1974).
609 F.2d at 679.
D. Suppression of In-Court Identification
Kester's last allegation is that his in-court identification by Coppola should have been suppressed because there was a suggestive pre-trial photographic display. This requires consideration of two questions: first, were the photographic identification procedures impermissibly suggestive, and second, if they were, under all the circumstances did they lead to "a very substantial likelihood of irreparable misidentification" in court. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). "Short of that point, such evidence is for the jury to weigh." Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140 (1977).
At a hearing required by Kester's motion to suppress, Coppola testified that in May, 1977, he and Turchi met the owner of the Orthodox Street warehouse. He described him as being short, old, light hair, dark glasses, and heavy set. Coppola then identified Kester as being that man. On cross-examination, Coppola explained he and Turchi had gone to the warehouse at Morrone's direction to get $ 5,000. that the owner would have for them. They arrived in late morning or early afternoon, three days before the fire. The man they met was waiting on the second floor, approximately 20 feet from a window which Coppola estimated to be about four feet by eight feet. While Turchi talked to the man, Coppola walked around the second floor looking at the building. He was as far as 50 feet from the man-and also right next to him. He described the lighting as "bright enough to see around there." At one point, Turchi called him over, handed him a brown paper bag, and told him to count the money in it. He did so. Coppola said he looked at the man directly, had a good, clear look at him, and the light was bright enough to see the man. The three of them were on the second floor together for about 15 minutes. Coppola never saw him again until Agent Perlick showed him a group of photographs in October or November, 1978.
Agent Perlick said he interviewed Coppola in February, 1979, at which time he displayed a spread of photographs and asked Coppola to identify anyone that he could. Coppola recognized several, and as to one of Kester, said it "looked like the individual who owned the Orthodox Street building that he and Turchi met with." The photographic display which Perlick showed Coppola contained 17 pictures, eight of which were of individuals connected in some way with this case. None of them, except the one of Kester, were of a person who would have matched his physical description. My first consideration, therefore, was whether the photographic display was impermissibly suggestive as to Kester. Accordingly, I took into account that Coppola was shown 17 pictures and was told to select all persons whom he knew. This was not the customary line-up type display where someone is asked to recall an observation made during an emotionally charged event of limited duration and asked to identify a person who victimized him. Here, Coppola's attention was not directed to the Orthodox Street fire, or to the possibility that a picture of the man he said he saw at the warehouse might be among the group, or for that matter, to any specific incident. Coppola had been involved in other fires and the ATF investigation was not limited to the events which preceded one arson but also related to matters which post-dated the fires. It is true that Coppola's own pictures were among the group as were those of persons whom he knew well, including other defendants in this case. It is also true, however, that one of the pictures was that of William Fox, whom Coppola had never seen, and Coppola made no identification of him. Based on all of these factors, I decided that the show of photographs did not suggest to Coppola that he should select the one of Kester and identify him as being the owner of the building.
Next I considered the lighting in the warehouse, the fact that Kester wore no mask, the 15 minutes during which Coppola could observe Kester, the distance Coppola was from Kester, the absence of any obstructions to his vision, the fact that he was paying attention to Kester, the description he gave of Kester, the degree of Coppola's confidence in his identification, and the fact that there had been no prior failure to identify.
I also took into account, however, that there were certain differences between the way Coppola expressed himself before me and the way he stated matters to the Grand Jury. For example, before the Grand Jury he said the warehouse was vacant and dark and that he "did not get a real clear look at the owner because of the darkness. However, I did observe that he was a grey-haired old man, possibly in his 60s, fairly short, heavy set and I believe he wore glasses." (N.T. 3-48). In his testimony before me, he said that the light was bright enough for him to identify Kester. There were certain discrepancies between his testimony and that of Agent Perlick as to the number of photographs he saw and when he saw them. Coppola also said that the picture he saw did not refresh his recollection as to the man he had seen in the warehouse (N.T. 3-49) and that it did not influence his ability to identify Kester in court (N.T. 3-7).
From all these circumstances, I conclude that even if the photographic display had been impermissibly suggestive, the Government's clear and convincing evidence showed there was an independent origin for the in-court identification. See Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); United States v. Zeiler, 447 F.2d 993 (3rd Cir. 1971).
Having considered the totality of the circumstances (N.T. 3-58-62), I determined that there was little chance that the events described to me would have lead to an irreparable misidentification in court. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); United States v. Coades, 468 F.2d 1061 (3d Cir. 1972).
I therefore refused the motion to suppress. There was no error.
III. Cassello's Additional Argument
In Counts 10 through 17 of the indictment, Cassello was charged with mail fraud growing out of the Blue Bell Bar fire. Count 18 charged him with racketeering while Count 19 alleged conspiracy to engage in racketeering activities. The predicate offenses charged in the last two counts were Cassello's participation in the Blue Bell Bar arson and the arson at the Archway Tavern. Cassello contends that since he was found not guilty of mail fraud and since two predicate offenses must be established to support a conviction of racketeering or racketeering conspiracy, his convictions on Counts 18 and 19 must be set aside.
Cassello is wrong. His being cleared on the mail fraud charges cannot be interpreted as a finding he was not guilty of arson. Under the indictment and my charge to the jury the two offenses did not go hand in hand.
I specifically told the jurors that to warrant the conviction of any defendant on a mail fraud count they, the jurors, had to be convinced beyond a reasonable doubt of the existence of the scheme described in the indictment, that the defendants were charged with mail fraud not arson, and that since the scheme alleged involved the knowing participation by William Fox, if he was not guilty of mail fraud that none of the defendants could be guilty of it. (N.T. 15-51, 54, 62, and 63) Obviously the jury could have been convinced that Cassello participated in the actual arson but may not have been convinced that he participated in the scheme which the indictment described. For example, the bill of indictment alleged that Fox had procured the burning of the bar. The jury may have concluded that without Fox's knowledge, his wife had made the arrangements or that Harry Bassion had done so. Under those circumstances, the Government would not have established the scheme it charged and the jury could not have found Cassello guilty of mail fraud.
The defendants raised many other reasons in support of their motions, but did not consider them worthy of briefing or oral argument. Neither do I.
Finding no merit in any of the reasons advanced by the defendants, I conclude their motions for post-trial relief must be refused.
ORDER SUR MOTION OF MODERWELL L. KESTER TO SUPPRESS STATEMENT
AND NOW, this 21st day of June, 1979, after hearing, the pre-trial motion of Moderwell L. Kester to suppress a statement is hereby refused, the court having concluded that it was made voluntarily. In connection with this order, the court makes the following findings:
(1) On December 13, 1977, Agent Harold C. Parlick and Agent Piccirilli, both of the Bureau of Alcohol, Tobacco and Firearms, went to the office of Moderwell L. Kester at approximately 4:30 P.M.
(2) Agents Parlick and Piccirilli identified themselves and then had a conversation with Mr. Kester during the course of which they told him that they were investigating an arson at a building he owned. They showed him certain photographs of a group of individuals, but he denied knowing any of them. They also told him that they thought the fire in question had been professionally set, that they knew who the arsonist was, and that they could link him to that person. They also told Mr. Kester that since they were investigating an arson ring, they would make any cooperation on his part known to the court, although they could make no promises to him.
(3) The agents delivered a subpoena to Mr. Kester, requiring his testimony before the Grand Jury.
(4) Thereafter, Mr. Kester made the allegedly incriminating statements.
(5) Although the defendant had been drinking earlier in the afternoon, he spoke in a normal fashion to the agents, was coherent, logical, and reacted appropriately to what they said.
(6) Mr. Kester's will was not weakened by alcohol so as to be overborne by the officers and he did not speak to them involuntarily. He testified that sometimes when he has as much to drink, as he had had on December 13, 1977, he says things that he should not say. He also said that the agents put words in his mouth and that he told them what he thought they wanted to hear. However, none of these statements, singly or in concert, amounted to a credible statement on his part that his will had been overborne by the agents or that he spoke involuntarily.
(7) On three separate occasions when the agents started to leave, Mr. Kester stopped them so that he might continue to talk with them.
(8) During the time that he spoke with the agents, Mr. Kester was not in custody, he was not under arrest, his freedom of movement was not restricted in any way, and he did not say that he did not wish to speak to the agents. Although at one point he spoke of the fact that he did not wish to give them further information without talking with his attorney, prior to that time he did not say that he wished to speak to his lawyer and thereafter, the agents asked him no more questions.
(9) At no time was Mr. Kester given the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
(10) Mr. Kester was not subjected to custodial interrogation because he had not been taken into custody or otherwise deprived of his freedom of action in any significant way.
(11) "... Police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the stationhouse, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody'. It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977). (emphasis in original).
(12) The statements of Mr. Kester were made voluntarily. In making this determination, I have considered all of the circumstances surrounding the giving of the statement as well as the specific factors enumerated in 18 U.S.C. § 3501(b). In this regard, the time between arrest and arraignment is not applicable, the defendant knew the nature of the offense of which he was suspected at the time, and he knew that he had the right to the assistance of counsel, although he had not been advised of that fact. He was not advised, and he may not have known, that he was not required to make any statement and that any such statement could be used against him, and he was without the assistance of counsel during the period of his conversation with the agents.
(13) Insofar as the testimony of Agent Parlick and Mr. Kester differed, I accept that of Agent Parlick. Mr. Kester was forgetful, evasive, and not credible. In addition, statements he made differed from prior statements which he had given under oath.
BY THE COURT:
J. William Ditter, Jr.