Appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, for conspiracy to deprive a citizen of her civil rights, causing her death, in violation of 18 U.S.C. § 241 (1972) and for injuring a witness in violation of 18 U.S.C. § 1503(1972).
Moore, Hays and Mansfield, Circuit Judges. Moore, Circuit Judge (dissenting).
MANSFIELD, Circuit Judge:
Vincent Pacelli, Jr. appeals from a judgment of conviction in the Southern District of New York, following a jury trial before Judge Charles H. Tenney on both counts of an indictment charging that Pacelli (1) had violated 18 U.S.C. § 241*fn1 (1972) by conspiring with Barry Lipsky and others unknown to deprive Patsy Parks of her right to be a witness at trial, causing her death, and (2) had violated 18 U.S.C. § 1503*fn2 (1972) by using force to impede and injure Parks who had been a grand jury witness and who had been subpoenaed to be a witness for the government in a narcotics case, 71 Cr. 614, then pending against Pacelli.
Pacelli was sentenced to life imprisonment for the § 241 offense and to a concurrent five-year term for the § 1503 offense. Because the trial judge failed to exclude certain hearsay declarations offered to prove the belief of the declarants that Pacelli was guilty, and because the government failed to disclose to defense counsel certain statements made by its principal witness, Barry Lipsky, for use in cross-examining Lipsky, we reverse and remand for a new trial.
This case arises out of the brutal stabbing to death on February 4, 1972, of Patsy Parks whose body--which had been burned with gasoline flames--was found a few hours later by a police officer in a desolate area of Massapequa, Long Island. On the previous evening federal narcotics agents had attempted to serve a subpoena on Parks ordering her to appear as a witness at the trial of the indictment against Pacelli, which Judge Milton Pollack had scheduled to begin on February 8, 1972. Approximately nine months earlier, on May 27, 1971, Parks had testified before a federal grand jury in the Southern District of New York about a box which a friend told her contained money and which was delivered to Vincent Pacelli, Jr. Later the grand jury returned an indictment, 71 Cr. 614, against Pacelli and three others for violations of the federal narcotics laws.
On the evening of February 3, 1972, the federal agents seeking to serve the subpoena on Parks went to her Manhattan apartment, where they found her roommate, Patricia Quinn, who was told by them that they were looking for Parks in order to serve her with a subpoena. Upon learning shortly thereafter from Quinn of the attempted service, Parks went to a Manhattan discotheque, the Hippopotamus, where she approached Barry Lipsky, a friend of Pacelli, and told him she urgently wanted to see Pacelli about the subpoena.
Lipsky testified that he had been working for Pacelli since April 1971. After telling Parks to wait at the Hippopotamus he took a taxi to Pacelli's apartment at 501 Pelham Road, New Rochelle, New York where he found Pacelli, his wife Beverly, Barbara Jalaba (Beverly's sister) and Al and Ida Bracer, who were close friends of Pacelli's. According to Lipsky, when he told Pacelli in the presence of the others that a girl named Patsy wanted to see him about a subpoena, Pacelli said: "That goddam box . . . . I know it's about that goddam box. . . . ." Lipsky quoted Pacelli as saying just before leaving with Lipsky to return to Manhattan, "I know what I have to do."
Lipsky testified that the following events then occurred. Pacelli and Lipsky drove Mrs. Pacelli's rented car back to Manhattan. On the way they stopped at a gasoline station where Lipsky purchased four one-gallon cans of gasoline which Pacelli said he needed "to burn up the girl's body." Arriving at the Hippopotamus at approximately 2:00 A.M., they picked up Parks and proceeded to head--with Pacelli driving--toward Massapequa, Long Island. During this drive Pacelli offered Parks money to go to "California or to Brazil" which Parks rejected since she said she had to stay in New York for her job and for her child.*fn3 When the car, after about an hour, reached Massapequa Lipsky took the wheel at the request of Pacelli, who shifted to the back seat. Almost immediately thereafter Pacelli stabbed Parks in the throat. Parks pleaded with Pacelli not to hurt her since she was a mother, but he said, "Die, you bitch," and stabbed her several more times in the throat until she was dead. Thereupon Pacelli told Lipsky to drive to a wooded area where they dumped Parks' body and Lipsky set it afire after Pacelli had poured the gasoline over it.
On the way back to New Rochelle, according to Lipsky's testimony, he and Pacelli stopped at a gas station where Lipsky threw the contents of Parks' pocketbook away after removing the money--$20--and then at a body of water about three blocks from Pacelli's apartment where Lipsky threw into the water the knife which had been used to murder Parks. Lipsky spent the night at Pacelli's apartment and awoke during the morning of the 4th to hear Pacelli's wife and sister-in-law complaining about the work they had to do to clean blood from the rented car. Later that day Pacelli, his wife and sister-in-law, Lipsky and another friend named Abbe Perez returned the rented car to an Econo-Car agency on Westchester Avenue in the Bronx. On the evening of February 5th, Lipsky had dinner with Pacelli at a Manhattan restaurant where Pacelli expressed satisfaction at having killed Parks since she would have testified against him at his upcoming trial for narcotics violations.
Pacelli and his co-defendants went to trial in the narcotics case before Judge Pollack on February 8th, and on February 10th Judge Pollack remanded Pacelli to jail when the prosecutor in the case advised him that Parks had been killed.
Of particular significance in the present case, in view of objections by defense counsel at trial, is Lipsky's testimony regarding statements made by certain friends and relatives of Pacelli at a meeting on February 10th, immediately after Pacelli's remand, which Lipsky attended as the result of a phone call to his home from Beverly Jalaba, Pacelli's wife, who told him to meet her at the Manhattan apartment of Pacelli's uncle and aunt, Frank and Antoinette Bassi. Lipsky was permitted to testify over objection that when he arrived at the Bassis' apartment Beverly took him aside and told him that Parks' body had been found and Pacelli had been put in jail. Also present at the apartment were Beverly's sister Barbara Jalaba, the Bassis, Pacelli's sister Loretta, Al Bracer, Abbe Perez, and a man named Bayron. Lipsky testified that "Frank Bassi was saying that there is a million places to put a body and you don't have to . . . . burn it up and leave it laying right out in the middle of nowhere for people to find." Lipsky testified further that Abbe Perez and Al Bracer took Lipsky aside and told him to go away for a while. Later that night, in the presence of Pacelli's wife, Perez gave Lipsky $1,000 for the trip.
The next day, February 11th, Lipsky went to Miami Beach, Florida. On February 16th, Al Bracer again rented the same car which Pacelli's group had returned to Econo-Car on February 4th. Two days later the car was found in flames in New Jersey but a chemical analysis was able to determine that traces of blood were present on the rug located on the right front passenger side of the car. On March 2, 1972, Lipsky was arrested by Nassau County authorities when he returned from Florida. He confessed that he had been present during the murder of Parks but insisted that Pacelli had actually carried out the murder. After his confession Lipsky was indicted for murder by the State of New York. On March 7, 1972, Pacelli's New Rochelle apartment was searched pursuant to a warrant and among the items seized were several coats similar to the one which Lipsky claimed Pacelli wore on the night of the murder. One of these coats had traces of blood on it. On March 13, 1972, a knife was recovered from the water at the Cameron Boat Rental Company of New Rochelle, which was two blocks from Pacelli's apartment.
Shortly after his arrest by Nassau County authorities, Lipsky began talking with federal narcotics agents about Pacelli's narcotics operations. As a result three new indictments were returned against Pacelli: 72 Cr. 664 on June 5, 1972; 72 Cr. 1319 on December 4, 1972; 73 Cr. 441 on April 16, 1973. In June 1972 Pacelli was convicted on 72 Cr. 664 solely on Lipsky's testimony and in December 1972 Pacelli was tried on 72 Cr. 1319. During cross-examination of Lipsky, defense counsel produced tape recordings of conversations between Lipsky, his attorney, and members of the United States Attorney's staff, which occurred in March and April 1972, during which Lipsky was promised immunity on any and all matters concerning which he would provide evidence to the federal authorities. Since Lipsky had perjuriously denied in his testimony in the trial of both narcotics charges (72 Cr. 664, 72 Cr. 1319) that he had received any consideration for his testimony, the conviction in 72 Cr. 664 was vacated and a mistrial was declared in 72 Cr. 1319. A few days later, on December 22, 1972, Lipsky wrote a four-page letter to Robert Morvillo, who was then Chief of the Criminal Division in the United States Attorney's office for the Southern District of New York. In it he stated among other things that he was in a "terrible mental state" because of the mistrial he had caused, and declared that his "main purpose for the last 9 1/2 months" was to " try my very best to assist the Government," and that he " looked forward eagerly to testifying in narcotics cases for the Government, against Vincent Pacelli Jr. and others." (Emphasis in original)
On January 15, 1973, Lipsky entered a plea of guilty to a reduced charge of manslaughter in Nassau County. When the plea was entered a letter from the United States Attorney's office for the Southern District of New York setting forth Lipsky's cooperation in federal narcotics investigations and his anticipated testimony against Pacelli in the present case was read to the judge who accepted the plea. Two weeks later, on January 31, 1973, the indictment leading to this appeal was returned against Pacelli. Trial of the indictment charging Pacelli with violating 18 U.S.C. § 241 (1972) (Count I) and 18 U.S.C. § 1503 (1972) (Count II) commenced on April 30, 1973, and on June 1, 1973, after the jury had on May 3, 1973, found Pacelli guilty as charged, Judge Tenney sentenced Pacelli to a term of life imprisonment on Count I and a term of five years to be served concurrently on Count II.
On this appeal Pacelli argues that 18 U.S.C. § 241 does not protect any federal right to be a witness at a trial and that if it does his conviction must be reversed since the trial court permitted the introduction of prejudicial hearsay when it allowed Lipsky to testify as to what Beverly Pacelli, Frank Bassi and others said to him at the Bassis' apartment on February 10, 1973. Furthermore, Pacelli claims he was denied the right to fully cross-examine Lipsky since the government did not disclose statements made by Lipsky to the federal narcotics agents and his letter to the United States Attorney and since the trial court would not permit defense counsel to fully explore the circumstances of Lipsky's confession to the Nassau County authorities or Lipsky's relationship and dealings with the United States Attorney's office. Pacelli also raises several other objections to the sufficiency of proof under § 241 and to the conduct of the trial court and of the government's prosecutor.
Title 18 U.S.C. § 241 protects the free exercise of rights "secured by the Constitution or laws of the United States." In deciding whether a right is so secured, it is not enough simply to scan the Constitution or laws to see whether the right is mentioned specifically. The Supreme Court has long made clear that certain rights are implicitly conferred by the Constitution's establishment of a national government intended to be "paramount and supreme within its sphere of action." In re Quarles, 158 U.S. 532, 39 L. Ed. 1080, 15 S. Ct. 959 (1895); Logan v. United States, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429 (1892). One of these is the right to testify at a federal trial in response to a request or command of a federal district court. Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise the foundations of federal justice would be undermined. In Quarles the Court, in holding that a citizen's right to inform federal authorities concerning violations of the internal revenue laws is secured by the Constitution even though it is not specifically mentioned in "any of the Amendments," stated that "to leave to the several states the prosecution and punishment of conspiracies to oppress citizens of the United States, in performing the duty and exercising the right of assisting to uphold and enforce the laws of the United States, would tend to defeat the ...