Menendez v. United States, 25163.

• Decision Date: 08 May 1968
• Docket Number: No. 25163.,25163.
• Citation: 393 F.2d 312
• Parties: Manuel MENENDEZ, Thelma Dasher Menendez, Aristedes Menendez, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

393 F.2d 312 (1968)

Manuel MENENDEZ, Thelma Dasher Menendez, Aristedes Menendez, Appellants, v. UNITED STATES of America, Appellee.

No. 25163.

United States Court of Appeals Fifth Circuit.

April 5, 1968.

Rehearing Denied May 8, 1968.

COPYRIGHT MATERIAL OMITTED

John Paul Howard, Carlton P. Maddox, Jacksonville, Fla., for appellants.

Joseph W. Hatchett, Asst. U. S. Atty., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., Middle Dist. of Florida, for appellee.

Before BROWN, Chief Judge, CLAYTON, Circuit Judge, and CHOATE, Senior District Judge.

CHOATE, Senior District Judge:

The three defendants, Manuel and Thelma Dasher Menendez (Manuel's wife) and Aristedes Menendez (Manuel's brother), were convicted of violations under 18 U.S.C. § 1952.¹ The specific allegations were that on various dates the defendants did knowingly use a facility of interstate commerce (the long distance telephone)² between New York and Jacksonville to aid, promote and manage a lottery, said lottery being in violation of the laws of Florida (Fla. Stat. § 849.09, F.S.A.).

The points raised on appeal involve: the trial court's refusal to give protective instructions as to the use of Aristedes's extra-judicial statement, which contained references to the other two defendants, and the court's failure to order a severance in view of the statement; the court's instructions as to the elements of the crime; the production of FBI interview reports under the Jencks Act, 18 U.S.C. § 3500; the production of grand jury testimony; the admissibility of Aristedes's statements under the Miranda rule; the court's denial, in part, of defendants' motions for a bill of particulars and other discovery.

This court affirms the trial court as to the conviction of Aristedes, and reverses as to the convictions of Manuel and Thelma. The reversal is because the court failed to take protective measures to assure that Aristedes's statement would not be considered by the jury in connection with the guilt or innocence of Manuel and Thelma.

The basic evidence produced by the government was as follows:

Several lotteries, including one known as "totals," existed in the Jacksonville area in 1964 and 1965. The winning number for totals is the last two digits of the combined total liabilities of the twelve Federal Reserve Banks as of the close of business each Wednesday. There is but one winning number weekly, which is available around 4 p. m. each Thursday. The number, released by the Federal Reserve Bank of New York, did not reach Jacksonville through the newspapers until Saturday, or through the Jacksonville Branch of the Federal Reserve Bank of Atlanta until Friday or Monday of each week.

A witness from the Federal Reserve Bank of New York testified that each Thursday about 4 p. m. a person identifying himself as Menendez would call to obtain the combined liabilities of the banks.

In order to show the use of an interstate facility, the government produced records of the New York and Jacksonville telephone companies showing a series of calls on Thursdays around 4 p. m. from a telephone number registered to Aristedes Menendez in New York to a telephone number registered to Manuel and Thelma Menendez in Jacksonville.

The key government witness was an accomplice, Aristedes's son-in-law (who did some of the phoning himself at Aristedes's request). He testified to calls made by Aristedes in New York to Manuel and Thelma in Jacksonville to relay the lottery number.

Thelma's son said he was a pickup man for the lottery, hired by his mother. Other relatives and friends testified concerning the Jacksonville end of the operation and Manuel's and Thelma's involvement therein.

Extra-Judicial Statements of One Defendant Involving Co-Defendant —

Aristedes in New York had spoken with FBI agents in October 1965. When his written, unsigned statement was offered as evidence, defense counsel pointed out that it contained references to the co-defendants Manuel and Thelma and to their activities in requesting and receiving the totals numbers. Neither of them had been present when Aristedes had narrated the statement to the agents. The defense asked the trial court to instruct the jury that the statement was inadmissible as to Manuel and Thelma, or in the alternative, to strike or delete their names from the statement. The court refused these requests. No instruction limiting the consideration of the statement was given in the final charge to the jury.

It is well established that a confession made by one defendant implicating a co-defendant who was not present when the confession was made is inadmissible as to the latter. Any such statement is hearsay as to the non-declarant. Further, the non-declarant is helpless to subject the maker of the statement to cross-examination, unless the declarant voluntarily takes the witness stand, which Aristedes did not do in this case. Barton v. United States, 263 F.2d 894 (5th Cir. 1959).

Where that type of statement is admitted into evidence, the court must effectively instruct the jury at once, and not wait until the conclusion of the case, that the confession must be disregarded as evidence against the co-defendant.³

The Supreme Court stated the rule, in terms of co-conspirators, as follows:

"This Court long has held that a declaration made by one conspirator, in furtherance of a conspiracy and prior to its termination, may be used against the other conspirators. However, when such a declaration is made by a conspirator after the termination of the conspiracy, it may be used only against the declarant and under appropriate instructions to the jury." Delli Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 297, 1 L.Ed.2d 278 (1957).

Here, where no conspiracy was charged, it was prejudicial error to admit the statement of Aristedes, in which Manuel and Thelma were mentioned, without immediate cautionary instructions to the jury.

No prejudicial error has been shown as to the other points on appeal as they relate to Aristedes. Nevertheless, in view of the re-trial necessary for Manuel and Thelma, they will be discussed briefly.

Court's Instructions —

Defendants contend that the court erred in not instructing the jury that the government must prove that a particular type of lottery, a "totals" lottery, existed in the Jacksonville area. It is to be recalled that the charge was using the telephone in the commission of a State offense. The court did sufficiently define the offense, namely, the carrying on of a numbers lottery, in violation of Fla.Stat. § 849.09, F.S.A. Moreover, the defendants never requested an instruction that the existence of a particularly named numbers lottery was an element of the crime charged. If there was error, it would not have constituted plain error under Rules 30 and 52(b), Fed.R.Crim.P.

Production of FBI Interview Reports under Jencks Act —

It was established that in interviewing the witnesses the FBI agent had made notes or memoranda. He later made a report of the interview and threw the original notes away. The original notes were "not in as much detail" as the interview reports. The requests of defendants' counsel for these reports were properly refused.

To make such notes available it must appear that they in some way had been adopted or approved by the witness, which was not the case here. Cf., Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). It was not contended that the notes were a recording or transcription "which is a substantially verbatim recital of an oral statement * * * recorded contemporaneously with the making of such oral statement." 18 U.S.C. § 3500(e). In fine, the notes or reports were not statements as defined in the act.

The aim of the Jencks Act is "to restrict the use of such statements to impeachment." Palermo v. United States, 360 U.S. 343, 349, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The defense should not be allowed to use statements to impeach a witness which could not fairly be said to be the witness's own statement rather than the investigator's interpretations. Id. at 350, 79 S.Ct. 1217 at 1223.

Production of Grand Jury Testimony —

The defense timely sought the production of grand jury testimony of several government witnesses, for use in cross-examination, on the bases that: all the witnesses were related to the defendants; one of the witnesses was an accomplice; one of the witnesses said she had difficulty in remembering dates.

Inherent in the denial of production of the grand jury testimony is a finding that no particularized need therefor was shown by the defense. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). This court is unwilling to characterize that finding as erroneous under the circumstances. Since proof of the charges against Aristedes was quite substantial, it is highly unlikely that the production of the grand jury testimony would have resulted in his acquittal, particularly in view of his rather extensive written statement. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959).

Under Rule 6(e), Fed.R.Crim. P., disclosure of grand jury testimony is committed to the sound discretion of the trial judge. However, in deciding whether a case has been made for disclosure which outweighs the policy of secrecy, it is better practice for the trial court to inspect the grand jury testimony. In the re-trial of Manuel and Thelma this may be done. See Dennis v. United States, supra 384 U.S. at 873, 86 S.Ct. 1840, items 4 and 5.

Admissibility of Statement under Miranda Rule —

There were three occasions on which Aristedes spoke with FBI agents in New York. The first...