Rehearing Denied April 3, 1972 in No. 71-744. See 405 U.S.
On petition for writ of certiorari to the United States Court of
Appeals for the Third Circuit. The petitions for writs of
certiorari are denied.
Mr. Justice DOUGLAS, dissenting.
At the trial in this case there was much evidence of corrupt
practices by the mayoral administration of petitioner Addonizio
during his tenure as mayor of Newark, New Jersey. But the question
posed to the
Page 405 U.S.
jury below was not whether these petitioners had engaged in
corrupt practices but the narrower issue of whether these
defendants had entered into and executed a criminal agreement to
extract kickbacks from public contractors through threats of
physical harm or economic ruin in violation of 18 U.S.C. 1951.1
Although the petitioners were charged with 65 substantive acts of
coercive extraction of kickbacks, the key issue in the trial was
who, if anyone, had conspired to commit these acts. Absent a
finding that such a confederation had been formed most of the
evidence which damaged the petitioners could not have been
introduced at all inasmuch as this evidence was hearsay admitted
provisionally under the so- called coconspirator exception. That
the jury found a conspiracy to have existed, however, was under the
circumstances of this trial the unsurprising and virtually
inevitable result of the many disabilities imposed upon an accused
by the ordeal of a multi-defendant, conspiracy prosecution.
Page 405 U.S.
Justice Jackson catalogued many of these disabilities in his
well- known concurrence in Krulewitch v. United States, 336 U.S. 440
, 445, 446,
719, 720 (1949), reversing a conspiracy conviction, where he
concluded that the prevailing 'loose' practice as to [ the
conspiracy] offense constitutes a serious threat to fairness in our
administration of justice.' He criticized the tendency of courts to
dispense 'with even the necessity to infer any definite agreement,
although that is the gist of the offense.' Id., at 452. As to the
procedural evils of this device he found that the risk to a
codefendant of guilt by association was abnormally high:
'A co-defendant in a conspiracy trial
occupies an uneasy seat. There generally will be evidence of
wrongdoing by somebody. It is difficult for the individual to make
his own case stand on its own merits in the minds of jurors who are
ready to believe that birds of a feather are flocked together. If
he is silent, he is taken to admit it and if, as often happens,
co-defendants can be prodded into accusing or contradicting each
other, they convict each other.' Id., at 454, 69 S. Ct. at
Justice Jackson also regretted the wide leeway that prosecutors
enjoyed in the broad scope of evidence admissible to prove
conspiracy (and consequently to prove substantive acts as well).
Under conspiracy law, the declarations and acts of any confederate
in furtherance of the joint project are attributable to and
admissible against all of its participants. This is true even if
the declarant is not available for cross-examination. Moreover,
such statements are admissible 'subject to connection' by the
prosecutor later in the trial. At the close of the Government's
case, for example, the judge may believe that the Government failed
to present a jury question as to a defendant's participation in
Page 405 U.S.
collective criminal plot. In such a case, the judge must ask the
jury to disregard the provisionally admitted hearsay. Obviously,
however, it will be difficult in a lengthy trial (such as this one
filling 5,500 pages of transcript) for jurors to excise the
stricken testimony from their memories. In the alternative case
where the judge believes that a jury question has been presented as
to a defendant's participation in a criminal enterprise, the jury
is permitted to consider the provisionally admitted matter in
determining whether or not a defendant was a conspirator. In other
words, the jury is allowed to assume its ultimate conclusion.
Justice Jackson was particularly sensitive to the abuse potential
in this vicious logic:
'When the trial starts, the accused
feels the full impact of the conspiracy strategy. Strictly, the
prosecution should first establish prima facie the conspiracy and
identify the conspirators, after which evidence of acts and
declarations of each in the course of its execution are admissible
against all. But the order of proof of so sprawling a charge is
difficult for a judge to control. As a practical matter, the
accused often is confronted with a hodgepodge of acts and
statements by others which he may never have authorized or intended
or even known about, but which help to persuade the jury of
existence of the conspiracy itself. In other words, a conspiracy
often is proved by evidence that is admissible only upon assumption
that conspiracy existed. The naive assumption that prejudicial
effects can be overcome by instructions to the jury, cf. Blumenthal
v. United States, 332 U.S.
, 559, 257, all practicing lawyers know to be unmitigated
fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167
F.2d 54.' Id., at 453.
Page 405 U.S.
There are other disabilities. Often testimony will be receivable
only against a particular codefendant yet it may also inculpate
another accused such as where (a) a codefendant 'opens the door' to
prejudicial evidence by placing his reputation in issue,3 (b) a
codefendant wants to place before the jury information which is
helpful to him but is damaging to other defendants, or (c) the
Government desires to offer evidence admissible against less than
all of the codefendants. Cautionary instructions, of course, are
routinely given where such circumstances arise but we have often
recognized the inability of jurors to compartmentalize information
according to defendants. Bruton v. United States, 391 U.S. 123
also Jackson v. Denno, 378 U.S.
, 388, 1786 ( 1964); Krulewitch v. United States, 336 U.S.
, 453, 723 (1949) (quoted above).
Page 405 U.S.
This short-coming of the jury is compounded when, as here, the
jury is also asked to digest voluminous testimony.
A victim of the multi-defendant conspiracy trial has fewer
options for trial strategy than the ordinary defendant tried alone.
Counsel may reluctantly give up the option of pointing the accusing
finger at his client's codefendants in order to obtain similar
concessions from other trial counsel. Counsel must also divert his
preparation in part toward generating possible responses to
evidence which may be admissible only against other codefendants.
As for the defendant, he may be put to the choice of hiring less
experienced counsel or less actively pursuing discovery or
investigation because of the higher legal expenses imposed by
longer joint trials. Furthermore, although an accused normally has
'the right to present his own witnesses to establish a defense,'
Washington v. Texas, 388 U.S.
, 19, 1923 (1967), an accused in a mass conspiracy trial may
not put on his codefendants without their prior waivers of their
absolute rights not to testify. [Footnote 4
All of these oppressive features were present to various degrees
in this trial. But, in particular, the most onerous burden cast
upon these petitioners was their inability to cross-examine each
other as to comments which Government witnesses said they had heard
them utter. The Court of Appeals recognized that 'There
Page 405 U.S.
was much testimony as to statements made by various
co-conspirators during the course, and in furtherance, of the
conspiracy.' 451 F.2d
. For example, one important prosecution witness testified
that he had been a contractor hired by the city administration and
that one of the accused conspirators, 'Tony Boy' Boiardo, had told
him 'You pay me the ten percent . . . I take care of the Mayor. I
take care of the Council.' (A. 2611). The lawyer for the former
mayor, however, was not permitted to put Boiardo on the stand and
to ask him whether Addonizio had, in fact, entered into an
agreement with him to coerce kickbacks. This handicap of an accused
is at war with the holdings of this Court that a defendant should
be permitted to confront his accusers especially where, as here,
their declarations might have been purposefully misleading or
self-serving. Pointer v. Texas, 380 U.S.
, 407, 1069 ( 1965); Douglas v. Alabama, 380 U.S. 415
Brookhart v. Janis, 384
(1966 ); Bruton v. United States, supra; Barber v. Page,
390 U.S. 719
(1968); Roberts v. Russell, 392 U.S. 293
Dutton v. Evans, 400
(1970), is not inconsistent with this proposition.
There the Court found that the hearsay was probably reliable.
'[T]he circumstances under which [the declarant] made the statement
were such as to give reason to suppose that [he] did not
misrepresent [his coconspirator's] involvement in the crime.' Id.,
at 89. On the other hadn, involved here were declarants, as
mentioned earlier, who might have been motivated to misrepresent
the roles of other parties in order to induce contractors, such as
Rigo (the Government's key witness ), to make kickbacks. Moreover,
in Dutton the hearsay was 'of peripheral significance at most'
whereas here much of the case against the petitioners, as the
Page 405 U.S.
Court of Appeals pointed out, was admitted under the
coconspirator exception to the hearsay rule. [Footnote 5
In addition, the petitioners were deprived of the right to
cross- examine codefendant Gordon (who is not one of the
petitioners). He had testified at the prior grand jury proceeding
and that testimony was introduced at trial by the Government to
corroborate the story of the Government's key witness, Rigo, as to
various kickback transactions. The circumstances at trial were
substantially similar to those involved in Bruton except that
Gordon's grand jury remarks did not directly mention his
codefendants. Normally, that difference would be sufficient to
support the lower court's finding that Bruton was inapposite but
for the fact that Government's case against all of the defendants
turned upon Rigo's credibility. On cross-examination of Rigo, the
codefendants had relentlessly attacked his credibility. But when
the Government introduced the grand jury transcript in rebuttal,
the defense challenge was completely terminated because Gordon, who
was also on trial, could not be called to the stand. The judge, of
course, gave instructions to the jury to consider the impact of the
transcript upon Rigo's credibility only when assessing Gordon's
guilt but it is doubtful that the jurors could faithfully adhere to
the delicate logic that Rigo may have told the truth as to Gordon
The Dutton plurality opinion found the coconspirator
hearsay had played a minor role in the trial:
'In the trial of this case no less
than 20 witnesses appeared and testified for the prosecution.
Evans' counsel was given full opportunity to cross-examine every
one of them. The most important witness, by far, was the eyewitness
who described all the details of the tripe murder and who was
cross-examined at great length. Of the 19 other witnesses, the
testimony of but a single one is at issue here.' Dutton v. Evans,
, 87, 219 (1971).
Page 405 U.S.
may have lied as to his codefendants. The contrary conclusion,
to borrow from Justice Jackson, would be 'unmitigated fiction.'
Krulewitch v. United States, supra, 336 U.S., at 453.
In light of the claims of prejudice committed in this
multi-defendant conspiracy trial, I would grant certiorari to
consider whether the extensive reliance by the prosecutor on the
coconspirator exception to the hearsay rule and the admission of
the Gordon transcript deprived these petitioners of constitutional
'(a) Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be fined
not more than $10,000 or imprisoned not more than twenty years, or
'(b) (2) The term 'extortion' means
the obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or fear,
or under color of official right.' 18 U.S.C. 1951, Act of June 25,
1948, c. 645, 62 Stat. 793, as amended.
The potential for
abuse of multi-defendant conspiracy proceedings has been discussed
in O'Dougherty, Prosecution and Defense Under Conspiracy
Indictments, 9 Brook.L.Rev. 263 (1940); Note, Developments in the
Law: Criminal Conspiracy, 72 Harv.L.Rev. 919, 983 (1959); Wessel,
Procedural Safeguards for the Mass Conspiracy Trial, 48 A.B.A.J.
628 (1962 ); Goldstein, The Krulewitch Warning: Guilt By
Association, 54 Geo.L.J. 133 (1965).
An example of a
single defendant's opening the door to prosecution rebuttal
prejudicial to other defendants was presented in the famous
Apalachin trial (United States v. Bufalino, 285
'The reputation of the Apalachin
delegates and the character of the meeting had been the subject of
much public comment during the two years before trial. Many reports
had described the lengthy criminal records of some of the
delegates, had characterized the meeting as a convention of the
'Mafia' an had given other lurid details of what had occurred. None
of this evidence was considered sufficiently material to the charge
to warrant its introduction at trial.
'Towards the end of the trial, one of
the defendants placed his reputation squarely in issue. He called
witnesses who testified to his excellent reputation for truth and
veracity at the time of the trial.
'Ordinarily it would have been
entirely proper to attempt to refute this testimony by
cross-examining with reference to the earlier publicity; the
defendant himself had elsewhere complained about how much it had
hurt his reputation. However, such evidence might have had equally
serious adverse effects upon the nineteen co-defendants, who had
done nothing to open the door against themselves.' Wessel,
Procedural Safeguards of the Mass Conspiracy Trial, 48 A.B.A.J.
628, 631 (1962).
Even at a severed
trial of only one defendant, another alleged coconspirator may, if
called to testify, invoke his privilege against self-
incrimination. Where the severed trial is delayed until after the
acquittal or finalized conviction of the witness, however,
invocation of the privilege would be improper. In any event, even
if the witness refused to answer questions, the defendant would at
least obtain whatever inference of innocence might result from the
apparent guilt of the witness.