U.S. v. Vandetti

• Decision Date: 18 June 1980
• Docket Number: No. 79-5406,79-5406
• Citation: 623 F.2d 1144
• Parties: 6 Fed. R. Evid. Serv. 311 UNITED STATES of America, Plaintiff-Appellee, v. William J. VANDETTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1144

623 F.2d 1144

6 Fed. R. Evid. Serv. 311

UNITED STATES of America, Plaintiff-Appellee, v. William J. VANDETTI, Defendant-Appellant.

No. 79-5406.

United States Court of Appeals Sixth Circuit.

Argued April 14, 1980.

Decided June 18, 1980.

Edward G. Drennen, II, Florence, Ky. (court-appointed), for defendant-appellant.

Patrick H. Molloy, U. S. Atty., James E. Arehart, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before ENGEL, BROWN and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Appellant William J. Vandetti was indicted with six codefendants and charged with conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Appellant, who was not arraigned until the trial of the codefendants was in progress, was tried and convicted in a separate trial. On appeal he raises three issues: (1) whether it was prejudicial for the prosecutor to call his convicted codefendants as witnesses knowing that they would all assert their fifth amendment privileges and to require them to testify to the fact of their convictions; (2) whether there was error in admitting evidence of the relationship between one of the witnesses and certain codefendants; (3) and whether the evidence was sufficient to support the jury verdict. It is the opinion of this Court that the conviction must be reversed and remanded for a new trial on the basis of the first issue.

Vandetti was accused of violating § 1955 by acting as a doorkeeper and dealer at an after-hours gambling establishment. There was testimony that the operation opened for business at least several nights a week at approximately 2:00 A.M. and closed about 5:00 A.M. Although it did not have a liquor license, the establishment maintained a bar and patrons were served by either a bartender or a waitress. There were two games, in which not all patrons participated, blackjack and seven-card stud poker. Each game was dealt by a house dealer. Various witnesses testified to having visited the business over at least a two-month period, from approximately August to October 1977, and to having seen varying numbers of patrons, with the greatest number on the weekends. For the most part, the testimony at Vandetti's trial was the same as that at the trial of his codefendants, except that information relevant to his particular role was emphasized.

The evidence at Vandetti's trial did differ in one material aspect from that in the previous trial: his codefendants were called to testify by the prosecutor. Before the trial, the District Court conducted a hearing on the issue of whether the codefendants could properly be called to testify in Vandetti's trial. Vandetti's attorney objected to these witnesses being called on the grounds that the submission of any evidence from the codefendants would be cumulative, since there was more than enough evidence from the prior trial in which the codefendants were convicted to prove the government's case, and that the effect would be solely to prejudice the jury. (Hearing Tr. 11-12). He argued that under the circumstances the government should have to show some prejudice resulting from not calling these witnesses. (Hearing Tr. 17). The government took the position that the defendants had no fifth amendment testimonial privilege once they had been convicted by a verdict of guilty. It further asserted a need for their testimony since they would have relevant knowledge and that it would be prejudicial to the government if the jury did not know why they were not called to give testimony (Tr. 10). At the hearing, all of the codefendants stated unequivocally through their attorneys that they would claim their fifth amendment privileges and would not testify. Their refusal was based on their continuing liability for state prosecution under either gambling or liquor license laws and the fact that their federal convictions were on appeal and could result in further trial if there were a reversal. Thereupon, the trial judge made a finding that all of the defendants would take the fifth. (Hearing Tr. 7). He later modified his finding to suggest that the codefendants might change their minds at the last minute. (Hearing Tr. 11). The trial judge held that the government could call the witnesses to ask them their names, addresses, and a few questions (Hearing Tr. 15), since the codefendants were eyewitnesses and prejudice would naturally follow from not being able to call them. (Hearing Tr. 17-18).

During oral argument before this court, the government asserted that the appellant had waived any objection to the testimony of the witnesses by failing to object at trial. The record, however, fails to disclose such waiver. Rather, it demonstrates continuous vigorous objection. There can be no doubt that the appellant's position on the matter was effectively brought to the trial court's attention. There was no need to continue to object after the judge's decision. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934 (1965). Nevertheless, the defendant's attorney did renew his objections.

At the trial, the first witness, an undercover agent, testified at length about his visits to the gambling establishment. Several of the codefendants were brought into the courtroom briefly during his witness' testimony to be identified as conductors of the business. Their identity was relevant since whether the gambling business involved five or more persons and was in continuous operation in excess of thirty days, two elements of a § 1955 violation, were hotly contested issues. The prosecutor then proceeded to call the codefendants. The trial judge required each codefendant to answer questions with respect to his identity and whether he was convicted in the earlier trial. In addition the prosecutor asked additional questions to which they took the fifth amendment. During the first codefendant's testimony, the trial judge gave a cautionary instruction on the right to claim a fifth amendment testimonial privilege after the witness refused to answer whether he knew William Vandetti. (Tr. 93). The instruction was enlarged to apply to the other codefendants as well.

This court has permitted the practice of calling a witness who will assert his fifth amendment privilege where "the prosecutor's case would be seriously prejudiced by a failure to offer him as a witness." United States v. Kilpatrick, 477 F.2d 357 (6th Cir. 1973). ¹ In that case there were three persons involved in the illegal transaction, the defendant, an agent, and the witness who asserted his fifth amendment privilege. The Court quoted with approval from its holding in United States v. Compton, 365 F.2d 1, 5 (6th Cir.), cert. denied, 385 U.S. 956, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966):

"Government counsel need not refrain from calling a witness whose attorney appears in court and advises court and counsel that the witness will claim his privilege and will not testify. However, to call such a witness, counsel must have an honest belief that the witness has information which is pertinent to the issues in the case and which is admissible under applicable rules of evidence, if no privilege were claimed."

Kilpatrick, supra, at 360.

This court has cautioned, however, that it is a practice so imbued with the "potential for unfair prejudice" that a trial judge should closely scrutinize any such request. United States v. Maffei, 450 F.2d 928, 929 (6th Cir. 1971), cert. denied, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972). In the most extreme case, presentation of such a witness is obviously unfair, as when there is extensive questioning after the prosecutor knew that the privilege would be asserted. United States v. Mayes, 512 F.2d 637, 650 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975). Unless we are to depart from these earlier decisions, merely permitting the codefendants to be called as witnesses was not error. We find error, however, in admitting their testimony that they were convicted at the prior trial of conducting this illegal gambling business.

To determine whether this testimony was relevant the court must first decide what was adjudged by the verdict in the prior case. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951). The fact that a jury found that persons indicted with appellant Vandetti were guilty is not relevant to a determination of appellant's guilt. It has no tendency to make the existence of that guilt more probable or less probable than it would be without the evidence. Their conviction is not an element of the crime. To establish his guilt, the government was required to prove that at least four other persons, in addition to Vandetti, were engaged in the illegal gambling business. The jury might well have erroneously concluded that element was proved by the codefendants' prior convictions. As stated by the Supreme Court in Kirby v. United States, 174 U.S. 47, 60, 19 S.Ct. 574, 578, 43 L.Ed. 890 (1899) (dictum):

"As proof of the fact of conviction, the record (of conviction) would be admissible and conclusive, but it seems not to be admissible of the guilt of the convict, as against another person charged with being connected with him in crime, the record being in this respect res inter alios acta. It is evidence that a certain person, named in the record, was convicted by the jury, but not evidence as against a third person, supposed to have been engaged with him in a particular transaction, as to the ground on which the conviction proceeded, namely, that the convict committed the criminal act described in the record."

The jury's verdict that the codefendants were guilty is a hearsay statement. The exceptions to the hearsay rule provide for the admissibility of a final judgment of guilty as to a felony, "but not including, when offered by the Government for purposes other than impeachment, judgments against persons other than the accused." F.R.Evid....