U.S. v. Mackedon, No. 77-1093

• Decision Date: 09 September 1977
• Docket Number: No. 77-1093
• Parties: UNITED STATES of America, Appellee, v. Robert G. MACKEDON, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 103

562 F.2d 103

UNITED STATES of America, Appellee, v. Robert G. MACKEDON, Jr., Defendant, Appellant.

No. 77-1093.

United States Court of Appeals, First Circuit.

Sept. 9, 1977.

Edward F. Haber, Boston, Mass., by appointment of the Court, for defendant, appellant.

Alan D. Rose, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, LAY ^* and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant and one Lessard were tried for conspiracy and possession and sale of stolen U. S. Treasury checks. Lessard pleaded guilty in the middle of a three day trial. On the third day, tape recordings of conversations between Lessard and a government informer and cooperator, Lodge, were introduced into evidence. One tape contained an exchange in which Lessard told Lodge what to do with some checks returned and money paid according to a price Lessard had negotiated. The two could not readily agree on a convenient meeting place. Lessard finally said, ". . . just give it (money and returned checks) to Bob, 'cause it belongs to him anyway, you know." Appellant's first name is Robert. Appellant objected and the jury was immediately given a "Honneus" instruction, following our prescription in United States v. Honneus, 1 Cir., 508 F.2d 566, 577 (1974). ¹

At the conclusion of the evidence, the court in its charge to the jury changed its formulation. It said that the jury could use "statements by Lessard made out of the presence of (appellant) . . . in a preliminary way in determining whether Lessard was part of a conspiracy with somebody" but that "(i)n considering whether (appellant) was a member of the same conspiracy, you must consider only the evidence as to his acts and statements." Only if appellant was so found to be a member of the conspiracy could Lessard's hearsay statements be used against appellant. The court, in colloquy with counsel, expressed its view that the Lessard declaration was admissible to prove that Lessard was in a conspiracy with somebody, "Bobby" not being a positive identification. Counsel for appellant argued that, since there had never been a suggestion of a conspiracy other than between Lessard and appellant, it was prejudicial to tell the jury to consider the declaration on the issue of conspiracy vel non, but to ignore it on the issue of appellant's membership in the conspiracy.

Appellant appeals from the judgment of conviction on the basis of this instruction. He first argued, in his main brief, that, since the new Rules of Evidence were in effect at the time of his trial, the court was required by our opinion in United States v. Petrozziello, 1 Cir., 548 F.2d 20 (1977), to determine that the evidence of conspiracy and of defendant's membership in it reached at least the level of a preponderance. Appellant claimed that, because of the vulnerable status of credibility of Lodge, the key witness, the court did not and could not have found the evidence to be preponderating. ² Thus, under Petrozziello, which appellant argued was retroactive, the court had failed to apply the co-conspirator exception correctly.

In his reply brief, appellant does not contest the government's argument that Petrozziello should not be applied retroactively. ³ We think this concession was well founded. In Petrozziello, we said that "(w)ithout the benefit of an appellate decision on the issue, the judge's use of the traditional standard was not plain error." Id. at p. 23. Indeed we now go farther and say that for cases tried between the effective date of the new Rules of Evidence, July 1, 1975, and the date of our decision in Petrozziello, January 21, 1977, a district court would not have committed reversible error if it applied either our Honneus approach or the new Rules accompanied by a determination from all the evidence that it "is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." Id.

Appellant, however, now bases his case on the court's alleged failure to follow Honneus, by admitting the statement of the alleged co-conspirator, Lessard, implicating appellant in the conspiracy in order to prove that there was a conspiracy between Lessard and "somebody". This does seem to us to violate the teaching of Honneus that "the conspiracy itself and each defendant's participation in it must be established by independent non-hearsay evidence." 508 F.2d at 577. ⁴ We therefore are compelled to review the evidence to see if appellant's "substantial rights" were affected. Honneus, supra, 508 F.2d at 577.

Lodge, the government witness, testified to having been with appellant and Lessard on four occasions. On December 2, 1975, at Lessard's home, appellant took two brown envelopes from a coat pocket, extracted a Treasury check, and asked Lodge if he would have any trouble cashing them. On December 3 at the Wayside Cafe, Lodge talked to appellant in Lessard's presence and said he had a buyer for the checks. Appellant asked what the buyer did for a living and what he was willing to pay. When told that he would receive $1000 for every $4000 of checks, appellant said that he and Lessard would receive $500 from each $1000 received and that Lodge would receive $125 from each $500. Appellant inquired if the buyer would take "the whole $11,000"....