U.S. v. Bufalino

• Decision Date: 10 May 1978
• Docket Number: Nos. 636,637,D,663,s. 636
• Parties: UNITED STATES of America, Appellee, v. Russell BUFALINO, Michael Sparber, and Herbert Jacobs, Defendants-Appellants. ockets 77-1438, 77-1444, and 77-1445.
• Court: U.S. Court of Appeals — Second Circuit

Page 446

576 F.2d 446

UNITED STATES of America, Appellee, v. Russell BUFALINO, Michael Sparber, and Herbert Jacobs Defendants-Appellants.

Nos. 636, 637, 663, Dockets 77-1438, 77-1444, and 77-1445.

United States Court of Appeals Second Circuit.

Argued Feb. 9, 1978.

Decided May 10, 1978.

Barbara S. Jones, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for S. D. New York, Audrey Strauss, Asst. U. S. Atty., New York City, of counsel), for appellee.

Charles P. Gelso, Wilkes-Barre, Pa. (Wilfred L. Davis, New York City, of counsel), for defendant-appellant Bufalino.

William J. Gilbreth, New York City (James F. Haley, Jr., New York City, of counsel), for defendant-appellant Sparber.

Arnold E. Wallach, New York City, for defendant-appellant Jacobs.

Before HAYS, FEINBERG and MANSFIELD, Circuit Judges.

FEINBERG, Circuit Judge:

Russell Bufalino, Michael Sparber and Herbert Jacobs appeal from their convictions for using extortionate means to collect extensions of credit and conspiracy to commit that crime in violation of 18 U.S.C. § 894, following a jury trial before Judge Lasker of the United States District Court for the Southern District of New York. ¹ Appellants raise numerous points, principally that the judge should have granted their motions to suppress certain tape recordings and testimony, that a mistrial should have been declared because of third-party contact with the jury, and that appellants were not shown to have engaged in conduct prohibited by 18 U.S.C. § 894. We conclude that the judgments of conviction should be affirmed.

I. The Facts

The jury could have found as follows. In mid-February 1976, a singularly credulous New York jeweler named Herbert Jacobs entered into a number of transactions with one Jack Napoli wherein some $25,000 worth of diamonds were transferred to Napoli in exchange for a series of promises and a worthless check. Some of Napoli's success derived from repeated unauthorized invocations of the name of Russell Bufalino, who evidently constituted an impressive credit reference with Jacobs. When Napoli's vows of restitution went unmet, Jacobs called in Bufalino and Michael Sparber for help in collecting the moneys owed. There followed a series of threats by these two men, inducing Napoli to contact the FBI. Sparber at one point told Napoli's girl friend that she and her children would be jeopardized "(i)f Jack doesn't do the right thing." The FBI outfitted Napoli with devices which recorded and transmitted various telephone and face-to-face conversations between Napoli and appellants. During the surveillance period, Sparber and Bufalino warned Napoli that he would be subjected to bodily harm if he failed to honor his debts. Bufalino was recorded on one of the tapes as cursing Napoli and threatening that "I'm going to kill you." Jacobs told Napoli over the telephone that if he "showed . . . good faith, they're not gonna kill you." A review of these and related aspects of the record convinces us that the jury's verdict rested on an ample evidentiary foundation. It remains to consider appellants' divers assignments of error.

II. The Suppression Motion

Appellants argue that tapes of face-to-face conversations with Napoli and related testimony should have been suppressed, because an FBI agent destroyed certain additional tapes of the conversations. The recordings admitted in evidence were made by a so-called "Nagra" device on Napoli's person. The destroyed tapes came from a back-up recorder, which was part of a radio receiver surveillance unit monitoring transmissions from another device (a Kel transmitter) carried by Napoli.

Judge Lasker held a pretrial hearing upon appellants' motion to suppress evidence. An FBI agent testified that the principal reason for the Kel transmitter was to protect Napoli, and that, in reliance upon what he conceived to be standard Bureau policy, he had disposed of the Kel backup tapes about a week after they were made, upon determining that they were decidedly inferior to the Nagras. Condemning this ad hoc decision in strong terms, Judge Lasker nonetheless denied the motions to suppress in a memorandum opinion.

We do not understand the Government to deny that the destroyed materials constituted statements discoverable before trial under Fed.R.Crim.P. 16, and during trial under the provisions of the Jencks Act, 18 U.S.C. § 3500. We held in United States v. Crisona, 416 F.2d 107, 114-15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970), that tapes of statements made by a defendant in the process of committing a crime were within the scope of Rule 16; we suggested but did not decide that such tapes might also constitute Jencks Act material if they included statements by a government witness and were recorded at the government's instigation. Id. at 113. That precise situation subsequently confronted us in United States v. Miranda, 526 F.2d 1319, 1327 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976), and we stated that both Rule 16 and the Jencks Act entitled the defense to examine the taped material. See also United States v. Birnbaum, 337 F.2d 490, 497 (2d Cir. 1964). We adhere to that conclusion under the indistinguishable circumstances of the present case.

As Judge Lasker recognized, the Nagra tapes introduced in evidence contained gaps and inaudible passages upon which the back-up recordings, whatever their overall quality, might possibly have shed some light. This case thus falls into a regrettably sizeable class of prosecutions in which the defense might have been hampered by the Government's failure to live up to strict statutory obligations with respect to preservation of evidence. A review of the precedents reveals a distressing number of shredded, discarded, abandoned, and "intentionally non-preserved" documents, with those responsible for the most part as here professing no intention to suppress material evidence. ² While we have decided that the special circumstances of the instant case militate against reversal on this ground, we will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a Rule 16 or Jencks Act "statement" by reference to "department policy" or " established practice" or anything of the like. There simply is no longer any excuse for official ignorance regarding the mandate of the law. Where, as here, destruction is deliberate, sanctions will normally follow, ³ irrespective of the perpetrator's motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant. See United States v. Carrasco, supra, 537 F.2d at 376-79; Krilich v. United States, 502 F.2d 680, 685-86 (7th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1429, 43 L.Ed.2d 673 (1975); cf. Goldberg v. United States, 425 U.S. 94, 111 n.21, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976) ("Since courts cannot 'speculate whether (Jencks material) could have been utilized effectively' at trial, . . . the harmless-error doctrine must be strictly applied in Jencks Act cases."). This rule is consonant with language in earlier opinions of this court adverting to the appropriateness of sanctions for intentional "loss or suppression of evidence," United States v. Miranda, supra, 526 F.2d at 1328, and calling for a new trial where deliberately suppressed Jencks Act material subsequently surfaces and proves to be "merely material or favorable to the defense." United States v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975), cert. denied, 425 U.S. 939, 96 S.Ct. 1674, 48 L.Ed.2d 181 (1976). In educating personnel concerning their responsibilities in this area, government agencies must keep in mind the broad definition of discoverable "statements" incorporated in the governing texts. ⁴ We emphatically second the district court's observation that any resulting costs in the form of added shelf space will be more than counterbalanced both by gains in the fairness of trials and also by the shielding of sound prosecutions from unnecessary obstacles to a conviction.

In the case at hand, however, we feel that it would be unwise and unjust to apply a strict prophylactic rule, given the mitigating factors expressly relied upon by the district court. Judge Lasker heard and credited testimony that the back-up recordings were "largely inaudible" and exceedingly inferior in quality to the Nagra tapes; since the Nagra tapes were of " relatively high quality," the possibility that the defense could usefully have supplemented their content by resort to the back-up recordings is minimal. Also, we agree with the district court that, given "the nature and content" of the tapes played to the jury, there is "no reason to believe" that any such supplementary material "would have been favorable to the defense." ⁵ Finally, the FBI took extensive precautions to guard the recordings ultimately received in evidence from tampering during and after their creation. ⁶ Under the circumstances, we hold that Judge Lasker did not err in denying the motion to suppress.

III. Third-Party Contact With the Jury

At the opening of the third day of trial, the court and counsel were informed by a deputy clerk that The jurors called me into their room and they said they are quite nervous . . . (E)very time they go in or out a couple of the spectators are glaring at them. They said no matter where they went they kept bumping into these people . . ..

After discussion of the problem with all the attorneys concerned, Judge Lasker decided to conduct a voir dire of the jurors individually in chambers, outside the presence of counsel.

We sanctioned this very procedure in United States v. Miller, 381 F.2d 529, 540 (2d Cir. 1967), cert. denied, 392 U.S. 927, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968). Judge Lasker's decision to use it, in response to a request from Sparber's attorney, elicited no objection. Counsel for Jacobs was specifically asked if the voir dire would be...