United States v. Jacangelo, 13111.

• Decision Date: 26 July 1960
• Docket Number: No. 13111.,13111.
• Citation: 281 F.2d 574
• Parties: UNITED STATES of America v. Jerry JACANGELO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

281 F.2d 574 (1960)

UNITED STATES of America v. Jerry JACANGELO, Appellant.

No. 13111.

United States Court of Appeals Third Circuit.

Argued June 6, 1960.

Decided July 26, 1960.

George R. Sommer, Newark, N. J., for appellant.

Daniel E. Isles, Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges.

HASTIE, Circuit Judge.

Appellant Jacangelo and another man were tried together and convicted of conspiracy to transport forged "bondified" money orders in interstate commerce. Appellant was also convicted of the substantive offense of illegal transportation of the money orders. By far the most impressive and damaging evidence of Jacangelo's guilt, indeed, the only evidence unequivocally connecting him with the essential interstate transportation of the money orders, was an elaborate written confession, which had been signed by his codefendant after the termination of the alleged conspiracy. This confession described the alleged criminal enterprise in detail and pictured Jacangelo as the moving and principal party throughout. Certainly, if this confession is disregarded, the government's case against Jacangelo is weak.

Beyond its disclosures about the offense charged, the codefendant's confession contained a statement that Jacangelo was unwilling to cash the money orders himself because he was "on probation" and "on bail". Nevertheless, over Jacangelo's objection the entire statement, without any deletion whatever, was read to the jury, albeit with emphatic and repeated admonition that it should be considered only against the codefendant who had signed it. A motion for mistrial, on the ground that the jury had been told in effect that Jacangelo had been convicted of and charged with other crimes, was denied. In these circumstances we must determine whether there was error in permitting the entire statement to go to the jury.

It is familiar learning that any statement made by a conspirator in furtherance of the conspiracy and during its pendency is admissible against each co-conspirator, provided a foundation has been laid by independent proof of the conspiracy. Clune v. United States, 1895, 159 U.S. 590, 593, 16 S.Ct. 125, 40 L.Ed. 269; Logan v. United States, 1892, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. See Krulewitch v. United States, 1949, 336 U. S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790. However, any incriminating statement made by a conspirator after termination of the conspiracy is his admission alone. At that stage, no theory of agency, such as is invoked to characterize verbal acts during and in furtherance of a conspiracy, can justify charging one recent conspirator with the admission of another. Such a statement is unquestionably inadmissible hearsay as against anyone but its author. Nevertheless, when the author of such a confession and another whom it implicates are tried together the courts have rather generally permitted the jury to hear and consider the statement as evidence against its author with an admonition that it is to be disregarded as evidence against the codefendant. E. g., United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360; Rich v. United States, 1 Cir., 1933, 62 F.2d 638. Until recently the Supreme Court adhered to this position despite its recognition that in many cases the accompanying admonition is likely to be no more than ritualistic counsel of psychologically impossible behavior. Blumenthal v. United States, 1947, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154.¹ But in Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S. Ct. 294, 1 L.Ed.2d 278, while a bare majority of the Court held that such restrictive admission of a hearsay statement of a codefendant was not, without more, reversible error, the opinion of the Court nevertheless emphasized the particular circumstances of the case in such a way as clearly to imply that other circumstances would have produced a different result. Delli Paoli involved a joint trial in which petitioner and four other codefendants were convicted of conspiring to deal unlawfully in alcohol. The post-conspiracy confession of one of the defendants contained assertions implicating the petitioner. It was admitted with explicit instructions that it be considered only in determining the guilt or innocence of its author.

It is noteworthy that the only objection to this statement as evidence against the codefendant was its hearsay character. The same assertions from the lips of a witness on the stand would clearly have been admissible against all defendants. Moreover, as the Court pointed out in Delli Paoli, there was no practical way of deleting the references to the codefendant and leaving the substance of the confession intact. And finally, the Court emphasized that so much of the statement as incriminated the codefendant merely corroborated other uncontradicted testimony implicating the codefendant and thus was essentially cumulative.

The opposite is true...