U.S. v. Schaffer, 75-1213
Decision Date | 17 July 1975 |
Docket Number | No. 75-1213,75-1213 |
Parties | UNITED STATES of America v. Albert Martin SHAFFER, Jr., a/k/a "Monk", and Basil Vespe. Appeal of Basil VESPE. |
Court | U.S. Court of Appeals — Third Circuit |
Victor F. Battaglia, William H. Uffelman, Biggs & Battaglia, Wilmington, Del., for appellant.
W. Laird Stabler, Jr., U. S. Atty., Alan J. Hoffman, Asst. U. S. Atty., Wilmington, Del., for appellee.
Before VAN DUSEN, ROSENN and WEIS, Circuit Judges.
The defendant appeals from his sentence on a conviction for extortion and conspiracy to commit extortion in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 371. The district court wrote two opinions: United States v. Vespe, 389 F.Supp. 1359 (D.Del.1975); United States v. Shaffer, 383 F.Supp. 339 (D.Del.1974), which contain the background facts.
In his first argument for reversal, the defendant strongly urges us that the district court committed reversible error in one of the cautionary remarks it made in the course of the trial. At that point in the trial, the Government sought to introduce the out-of-court declarations of Vespe's deceased co-defendant, Shaffer, through the testimony of the complaining witness, Remedio. Counsel for Vespe objected that the Government had not yet proved prima facie Vespe's participation in a conspiracy by proof aliunde. United States v. DeLazo, 497 F.2d 1168, 1170 (3d Cir. 1974). The district court admitted the testimony, subject to its being stricken if the Government failed subsequently, by proof aliunde, to demonstrate prima facie Vespe's connection with a conspiracy, with the following precautionary instruction:
N.T. 121-22 (quoted, 389 F.Supp. at 1370). The defendant contends that the second sentence in this precautionary instruction left the impression in the minds of the jurors that the conspiracy would have been proven if the court did not subsequently strike the evidence. Since the court did not subsequently strike the evidence, the defendant argues that the jury was in effect directed to find the defendant guilty.
If the second sentence stood alone, we would have to agree that it improperly usurped the jury's function in determining whether Vespe and Shaffer had conspired. However, the offending sentence was embedded in a long trial in which the instructions to the jury, when read as a whole, on the co-conspirator rule were not only consistent with due process but were actually favorable to the accused. The remainder of the precautionary instruction quoted above in particular, suggests that the Government must prove to the jury that a conspiracy existed between Vespe and Shaffer before they may consider Shaffer's hearsay declarations as evidence against Vespe. To the same effect was the court's final charge:
N.T. 743, 747-48 (quoted, 389 F.Supp. at 1371). By instructing the jury that they had to find beyond a reasonable doubt that Vespe was connected with a conspiracy before they could consider Shaffer's declarations against him, the court in effect required the Government to meet its burden on the basis of the proof aliunde alone. If the proof aliunde did not convince the jury of Vespe's guilt beyond a reasonable doubt, the court's charge did not allow them to resolve their doubts through the use of Shaffer's declarations. Because the court's final charge thus required the Government to meet its burden by proof aliunde, we believe that any prejudice which may have been caused by the court's earlier precautionary instruction was ultimately nullified, so that reversible error was not committed.
A second argument advanced by the defendant also deserves some discussion. The defendant contends that because it violated Delaware law for Delaware police officers to record his telephone conversations with Remedio, the recordings should not have been admitted into evidence. 11 Del.C. § 1335 ( ) provides in part:
"A person is guilty of violation of privacy when, except as authorized by law, he . . ..
(4) Intercepts without the consent of all part...
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