United States v. Lucido, 72-2111.

• Decision Date: 24 October 1973
• Docket Number: No. 72-2111.,72-2111.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Anthony LUCIDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.2d 868 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Jack Anthony LUCIDO, Defendant-Appellant.

No. 72-2111.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 1973.

Decided October 24, 1973.

Philip A. Gillis, Detroit, Mich., for defendant-appellant.

Fred M. Acuff, Jr., Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., E. D. Mich., Sidney M. Glazer, Atty., Dept. of Justice, Haskell Shelton, Laurence Leff, Sp. Attys., Dept. of Justice, Washington, D. C., on brief.

Before PHILLIPS, Chief Judge, and MILLER and LIVELY, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This case is an appeal from a conviction in the district court on one count of using interstate telephone facilities to carry on a gambling operation. The defendant, Jack Lucido, was tried on a three count indictment, one conspiracy count under 18 U.S.C. § 371, and two substantive counts of using interstate telephone facilities to carry on a gambling operation in violation of 18 U.S.C. § 1952. The jury returned a verdict of guilty on one of the substantive counts and not guilty on the other. It acquitted the defendant on the conspiracy charge.

Appellant's principal contention on appeal is that his acquittal on the conspiracy charge entitles him to a new trial on the substantive charge because of prejudice resulting from the introduction of hearsay evidence. Since we deem this issue to be dispositive other issues will not be discussed.

A major part of the evidence introduced against Lucido by the government was the testimony of two I.R.S. agents concerning telephone conversations of a third person, one Donald Dawson, while he was talking to some one named "Jackie" in Centerline, Michigan, on December 20 and 21, 1969.¹ This testimony is the fruit of eavesdropping conducted by the government agents against Dawson.² The agents were located in a motel room in Phoenix, Arizona, adjacent to a motel room occupied by Dawson and his wife. The agents listened through a door between the two rooms to Dawson's end of the conversation with "Jackie". The agents' testimony of what Dawson said when used against the appellant is, of course, hearsay. Although such evidence is normally barred from use by the hearsay exclusionary rule, it was admitted by the trial court as statements of a co-conspirator in the furtherance of a conspiracy, and hence as an exception to the hearsay rule. However, acquittal on the conspiracy charge makes necessary inquiry into the possible prejudice that resulted from the introduction of this evidence. Absent the conspiracy charge was there any other exception to the hearsay rule that would make the agents' testimony concerning Dawson's conversations admissible against the appellant?

The government urges that such testimony would be admissible against Lucido under the rule that declarations made in furtherance of an illegal joint venture are admissible against the other partners in crime. See United States v. Jones, 438 F.2d 461 (7th Cir. 1971); United States v. Holmes, 452 F. 2d 249 (7th Cir. 1971), cert. den. 405 U. S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972); United States v. Rinaldi, 393 F.2d 97 (2d Cir. 1968), cert. den. 393 U.S. 913, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968). This well-recognized rule is applicable only in situations where independent evidence establishes prima facie an illegal joint venture. E. g. McMahan v. United States, 424 F.2d 1216 (7th Cir. 1970).³ No such independent evidence exists in this case. Since such testimony is the basic element in the circumstantial evidence against Lucido, its prejudicial effect on the substantive charge is unmistakable.⁴

This case is an example of the potential hazards to a fair trial when the charge of conspiracy coupled with substantive charges confers upon the government a substantial procedural advantage. The Supreme Court has long recognized the dangers incident to the use of a conspiracy charge by government prosecutors. E. g. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L. Ed. 128 (1940). This is not to say that the selective use of the conspiracy charge may not be a valid and necessary practice in proper law...