COUNSEL: Harvey Weissbard (Argued), Weissbard & Wiewiorka, 20
Northfield Avenue, West Orange, New Jersey 07052, Counsel for Appellant,
John M. Riggi
John P. McDonald (Argued), McDonald, Rogers & Rizzolo, 181 West High
Street, P.O. Box 8208, Somerville, New Jersey 08876, Alan L. Zegas, 20
Northfield Avenue, West Orange, New Jersey 07052, Counsel for Appellant,
Salvatore Timpani
Michael Chertoff, United States Attorney, R. David Walk, Jr. (Argued),
Assistant United States Attorney, Office of United States Attorney, 970
Broad Street, Newark, New Jersey 07102, Counsel for Appellee
JUDGES: Before: COWEN, NYGAARD, Circuit Judges, and POLLAK,
District Judge *
* Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
OPINIONBY: COWEN
OPINION: [*1370]
OPINION OF THE COURT
COWEN,
Circuit Judge.
Defendants John M. Riggi, Sr. and Salvatore Timpani appeal their
convictions on a variety of charges stemming from alleged connections
with the Mafia. Riggi was charged in a thirty-three count indictment
with racketeering and committing acts of extortion while serving as a
labor union official and consultant.
[**2] He was
convicted on eight counts of the indictment, including violations of the
Hobbs Act,
18 U.S.C. § 1951 (1988), and Taft-Hartley Act,
29 U.S.C. § 186(b) (1988). He was acquitted on the remaining counts,
including charges under the Racketeer Influenced and Corrupt
Organizations (RICO) Act,
18 U.S.C. §§ 1961 et seq. (1988), that he was the "acting boss" of
the
DeCavalcante crime family. Timpani was convicted on a single
Hobbs Act extortion charge.
Riggi and Timpani challenge their convictions on several grounds. We
find it necessary only to deal with the issue of the defendants' right
to recross-examine witnesses following redirect examination by the
government. Because the erroneous restriction of recross-examination
resulted in a violation of defendants' rights under the Sixth Amendment,
the convictions must be reversed and a new trial ordered.
I.
Riggi and four others were tried in 1990 on charges arising from their
alleged connection with the Mafia. Only Riggi and Timpani were
convicted. Riggi was convicted of Taft-Hartley and Hobbs Acts violations
based on his conduct in connection with four contractors: Crosby's
Heating Service, Akron Construction Corp., Moser Brothers
[**3]
Mechanical Contractors, and J.P. Sasso Inc. Timpani was convicted of a
Hobbs Act violation for his conduct in connection with Crosby's Heating
Service. The following facts form the basis for these convictions.
A. The Crosby Extortion.
Billy Crosby operated a construction contracting business. In 1980,
Crosby hired a part-time mechanic, Charlie Alfano, who introduced Crosby
to Timpani. Timpani would come by the workplace to visit Alfano and the
two would talk about "getting work for Crosby." Crosby attended Alfano's
wedding, where he met Riggi. Riggi told Crosby that he could get him a
substantial amount of work, but that arrangements would have to be made
through Timpani.
In late 1980, an "agreement" was reached pursuant to which Crosby would
pay a five percent "commission" to Timpani and a ten percent
"commission" to Riggi
[*1371] for
work directed to Crosby. Crosby was told to put Timpani on the payroll,
which he did, although Timpani did not work regular hours. Crosby was
indirectly threatened a number of times, leading him to believe that he
could not disassociate himself from his new acquaintances without
putting himself in jeopardy.
Crosby intermittently performed construction work
[**4] on the
homes of Riggi and his family without full, and in some cases any,
compensation. The record indicates that Riggi and his associates slowly
took control of Crosby's business. Although Crosby came to be accepted
by Riggi, Alfano and Timpani, he was afraid of them. His fear was well
founded: Timpani told him that once he was in with them, there was no
getting out. The only way out, Timpani told Crosby, was to be dumped in
the bay with his feet encased in concrete.
In 1982, at Riggi's direction, Crosby explored placing a bid on a
contracting job. When one of the architects demanded a new Cadillac from
Crosby, he went to the FBI and agreed to wear a recording device and
have one installed in his office. The architect was not associated with
Riggi or Timpani, but Crosby recorded his conversations with Riggi and
Timpani as well. The resulting recordings corroborate Crosby's testimony
that Riggi and Timpani dominated him. Crosby continued to make payoffs
to Riggi and Timpani through 1985. Both Riggi and Timpani were convicted
of extorting Crosby under the Hobbs Act,
18 U.S.C. §§ 1951, 1952.
B. Akron Construction Company.
Leonard Teitel and Michael Castro formed Akron Construction Company
[**5] as a
general contractor to supplement their existing business, Autotron
Electric. They consulted Riggi before forming the new business because
they wanted to avoid labor problems. At Riggi's direction, Teitel and
Castro made Joseph Merlo a full partner in Akron Construction, although
neither of them knew Merlo previously. Merlo was paid a salary in
connection with the only job Akron Construction performed, though
Merlo's only work was to show up on the job site four or five times. The
check paid to Merlo was endorsed to a pizzeria which Riggi's wife and
Merlo's son owned.
Teitel also performed unpaid work for Riggi, his friends, and
associates. Riggi was convicted of two counts of extortion in connection
with these activities, under the Taft-Hartley Act,
29 U.S.C. § 186(b)(1), and the Hobbs Act,
18 U.S.C. § 2 (1988).
C. Moser Brothers Mechanical Contractors.
Moser Brothers used Riggi's influence to obtain a sweetheart contract.
The principal benefit of this arrangement was that Moser was able to use
nonunion laborers for $ 5.50 an hour, instead of the prevailing wage of
$ 12.50 an hour. Riggi was videotaped accepting a payment from Moser,
and convicted of extortion under the Hobbs
[**6] Act,
18 U.S.C. § 2, and Taft-Hartley Act,
29 U.S.C. § 186(b)(1).
D. J.P. Sasso, Inc.
J.P. Sasso, Inc. was a construction contractor that employed members of
Riggi's local union. Although Riggi did not formally own any interest in
Sasso, conversations recorded at a cafe frequented by Riggi reveal that
he was truly in control of the business. Riggi made it clear to Sasso
that Riggi was in control: "From now on anything you do, comes through
me." App. at 713.
The fact that Riggi was extorting Sasso can be inferred from several
other facts. Over a period of time, Sasso's ostensible owner, Joseph
Sasso, made large and unexplained gifts to Riggi's daughter and
son-in-law. In addition, Sasso inexplicably assigned valuable interests
in various partnerships to Riggi's daughter and son-in-law. Riggi was
convicted of extortion in connection with these transactions under the
Hobbs Act,
18 U.S.C. § 2, and Taft-Hartley Act,
29 U.S.C. § 186(b)(1).
II.
The trial in this matter began on May 21, 1990, and lasted approximately
eight
[*1372]
weeks. At trial, the district court announced a blanket rule that there
would be no recross-examination. Defendants objected vigorously. Over
time and after continued
[**7] protest,
the district court relented, little by little, until it eventually
lifted its absolute bar. The district court eventually permitted limited
recross upon request and, even then, subject only to offers of proof.
Such limited cross-examination as the district court permitted did not
occur, however, until after thirteen witnesses were examined on redirect
without further recross.
One of these thirteen, Ronald Fino, was a key witness for the
prosecution whose testimony on redirect examination may have been
dispositive on some counts. Fino was a significant government witness
who, on redirect examination, gave new and damaging testimony against
appellant Riggi. Fino was one of only two witnesses who gave testimony
directly supporting the government's thesis, which pervaded the
indictment, that Riggi was "acting boss of the
DeCavalcante crime family." App. at 1006. Fino's testimony to
that effect came out for the first time on redirect examination.
Although some organized crime affiliation by Riggi could be gleaned from
Fino's testimony on direct examination, his testimony could have been
interpreted to mean that Riggi was simply a union leader under the
control of organized crime.
[**8]
Two new matters arose on redirect examination of Fino which were not
permitted by the district court to be subjected to recross. First, Fino
referred to "suffering" he experienced as a result of disassociating
himself from organized crime and cooperating with the FBI. Second, he
specifically identified Riggi as the "boss or the acting boss of the
DeCavalcante family." Defense counsel were barred from recrossing
Fino in both areas.
The first new matter arose on redirect examination in the following
manner:
Q. Mr. Fino, do you remember on cross-examination saying something to
the effect that you feel that you're currently suffering? Do you
remember using that word, "suffering"?
A. Yes, I do.
Q. What did you mean by that?
A. Well, I lost everything I had. I lost my family, I lost my normal way
of life. I cannot function as a normal human being any more. I cannot go
into cities, I cannot go to ball games. There's things I just cannot do.
App. at 1002.
The second, and more important "new" area opened on redirect was:
Q. Do you recall on cross-examination you said that you had described
John M. Riggi as a quiet and humble man? Do you recall those words?
A. Yes, I do.
Q.
[**9] In fact,
during the time when you knew John M. Riggi, were you aware of John M.
Riggi's position in organized crime?
A. Yes, I was.
Q. How were you aware of John M. Riggi's position in organized crime?
A. I don't know how at first I became aware of it. Probably my father or
Sam Pieri. But I was always aware.
In fact, I was aware, you know, of his achieving a higher rank when it
happened. I was told that, too.
Q. A higher rank in what?
A. In La Cosa Nostra.
Q. And when you say your father or Sam Pieri, what conversations are you
referring to?
A. We had -- I had conversations with my father and Sam Pieri on
numerous occasions over organized crime in the country, Buffalo, other
areas, who was part of it.
Q. Was John M. Riggi discussed?
A. Yes, he was.
Q. What were you told about John M. Riggi?
A. At first, I was told when he was just a soldier or a capo, I don't
recall which one, but he wasn't boss then.
Q. And then were you later told something different?
A. Yes, I was.
Q. What was that?
[*1373] A.
That he was the boss or the acting boss of the
DeCavalcante family.
App. at 1005-06.
Defense counsel urged the court to reconsider its policy against
recross-examination.
[**10] They
indicated that Fino's "suffering" could be effectively impeached with
information that Fino lost his family not because of his cooperation,
but rather because he was having an affair and had failed to properly
support his children. Likewise, counsel argued that Fino's statement
about Riggi's position in organized crime should not go unchallenged.
The court repeated that redirect examination would be permitted but that
recross-examination would not. App. at 1013-24.
The only other witness to give direct testimony concerning Riggi's
alleged ties to organized crime, Jesse Hyman, admitted to having
committed perjury, had been convicted of numerous criminal offenses over
a period of years, and had only recently decided to cooperate after
having been sentenced to a lengthy prison term. Hyman was impeached
thoroughly, and it is problematic whether his testimony standing alone
carried substantial weight for the jury. Fino, in contrast, was clean
cut and college-educated. He had no organized crime acquaintances except
through his father. He cooperated with the FBI almost since the time he
took union office, had no criminal record, and appeared as a reliable
and believable witness. Fino
[**11]
claimed to be cooperating and testifying "out of conscience" and a
desire to "do the right thing." App. at 1004. The district court did not
permit defense counsel to recross-examine either witness.
In addition, the court's policy regarding recross examination was
unclear until it was challenged by counsel immediately following Fino's
redirect examination. The following colloquy between the court and
counsel took place outside the presence of the jury:
Defense Counsel: Judge, I don't know if I understand your policy. Is
that that there will be absolutely no recross for this trial?
The Court: That's correct, Government or -- both sides. It's going to
work the same way.
Counsel: Well, then, no redirect?
The Court: Oh, no. Oh, no. They're permitted to have redirect.
Counsel: But we're not permitted to have recross.
The Court: No, listen to what I'm saying Mr. McDonald. Don't look down
and look away. You asked me a question, and you said, they're allowed to
have it and we're not. That's an attitudinal problem that I don't want
to deal with in this case.
Counsel: No, I want to get the rules straight.
The Court: I want to deal fairly with you. All right? If you should put
[**12] a
witness on your side of the case and you engage in direct, and then they
cross, you will be entitled to redirect in the same fashion.
Counsel: I want to make sure I know the rules. There's no recross at
all.
The Court:
There's no recross at all.
Counsel: Judge, what about, though --
The Court: In other words, they engage in direct. You cross. Redirect is
only to go into the matters raised on cross.
Now, if Mr. Ruotolo is correct, which I don't agree with, and I'll
comment, but if Mr. Ruotolo were correct, that matters were raised on
redirect that were not part of cross, you should have objected, and I
would have sustained your objection.
So it will not occur, Mr. Ruotolo, that matters will be raised on
redirect that were not part of the cross, because virgin matter should
not be raised on redirect, and if it happened, you should have objected,
and I would have sustained your objection.
Ms. Waldor objected as to minorities and awards, and I sustained her
objection.
Counsel: I understand that, but I agree with Mr. Ruotolo that, if I
remember the colloquy, it went something like this. Mr. McCarthy said,
do you remember the questions about Ms. Waldor
[*1374]
that John Riggi
[**13] was a
humble and quiet man or something along that line? Yes. And then the
next question is, well, what do you know about him, and it's like,
he's the head of an organized crime family. You know, Judge, if
that's the way it happened, would you sustain an objection there?
The Court: Absolutely. I would have sustained the objection.
Counsel: Well, I respectfully submit, Judge, that
we didn't really
have the benefit of your rules at that time.
The Court: You now know.
Counsel: Well, now know -- the horse is out of the barn.
App. at 1015-17 (emphasis added). Obviously the district court did not
formally put counsel on notice of its policy until it was too late for
defense counsel to object to the government's questioning of Fino on
redirect. Defense counsel were proceeding under normal and expected
court trial practice methods, and it was impossible for them to have
anticipated the change of the rules by the district court.
Counsel: But I suggest to you, I never believed I waived my right to
either recross or to object to where redirect was --
The Court: I didn't say you waived it. We didn't get into the question
of waiver.
Counsel: I know, but because I did not
[**14]
perceive this Courts policy, in fact, I've waived my right to cut off
the redirect by not objecting here because I presumed I have the
opportunity to come back on recross.
The Court: I will hold the government to a strict redirect within the
matters raised on cross, and
they're now on notice. And you're on
notice. Just as I am not going to permit recross by you, because
recross, Mr. Ruotolo, despite your representation, it has nothing to do
with you as an individual, recross in a trial such as this becomes an
abuse.
Counsel: I recognize it can, Your Honor, and that's why you're here.
App. at 1019 (emphasis added).
Riggi and Timpani challenge their convictions on several grounds. First,
they claim that the district court improperly restricted all
recross-examination, depriving them of their rights under the Sixth
Amendment Confrontation Clause. In addition, Riggi asserts that the
prosecutor's rebuttal summation improperly suggested that Riggi
committed crimes not charged in the indictment; the evidence was
insufficient to convict; the government improperly amended the
indictment; a violation of the sealing requirement of
18 U.S.C. § 2518(8)(a) required suppression of all
[**15]
evidence obtained by electronic surveillance; the district court
improperly dismissed a juror for cause; evidence was obtained through
illegal wiretaps; and the district court improperly refused to conduct a
hearing into allegations that a juror was incompetent. Timpani joins
these arguments as they apply to him. Because of our disposition on the
issue dealing with the unwarranted cutting off and limitation of
recross-examination after new matters were raised on redirect
examination, we need not reach these other issues raised by defendants.
III.
Riggi and Timpani claim they were denied their constitutional right to
confront witnesses against them because, while the district court
permitted redirect examination, it announced, and for a substantial
portion of the trial maintained in force, a rule that absolutely forbade
any recross-examination. Their claim is based on the Sixth Amendment
Confrontation Clause. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
HN1
n1 The
Sixth Amendment Confrontation Clause states in pertinent part that "In
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. Const. amend. VI.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**16]
As a general rule,
HN2a trial
court has wide discretion to restrict recross-examination, especially
when no new matters have been raised on redirect.
See
Alford v. United States, 282 U.S. 687, 694, 75 L. Ed. 624 , 51 S.
Ct. 218 (1931);
United States v. Rockwell, 781 F.2d 985, 988 (3d Cir. 1986);
[*1375]
United States v. Kenny, 462 F.2d 1205, 1226 (3d Cir.),
cert. denied,
409 U.S. 914 (1972). The conduct of a trial and the orderly
presentation of testimony are committed to the sound discretion of the
trial judge, and will not be disturbed on appeal absent a showing of
abuse of discretion. A trial court has considerable discretion in
permitting recross-examination, see
Hale v. United States, 435 F.2d 737, 749 (5th Cir. 1970),
cert. denied,
402 U.S. 976, 29 L. Ed. 2d 142 , 91 S. Ct. 1680 (1971), and all
restrictions on the presentation of testimony are generally entrusted to
the discretion of the trial court.
See, e.g.,
United States v. Adams, 759 F.2d 1099 (3d Cir.),
cert.
denied,
474 U.S. 971, 88 L. Ed. 2d 321 , 106 S. Ct. 336 (1985);
Stich v. United States, 730 F.2d 115, 117 (3d Cir.),
cert.
denied,
469 U.S. 917, 83 L. Ed. 2d 229 , 105 S. Ct. 294 (1984); [**17]
Virgin Islands v. Blyden, 626 F.2d 310, 313 (3d Cir. 1980).
The Federal Rules of Evidence do not directly address redirect or
recross-examination.
HN3Rule
611(b) provides that the scope of
cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The
court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.
Fed. R. Evid. 611(b).
HN4The trial
court may permit inquiry into new matters on cross-examination when to
do so will illuminate material issues or clarify areas of confusion. 7
John H. Wigmore,
Evidence § 1889 (James H. Chadbourn rev. ed.
1978). Conversely, the court may limit inquiry into new matters on
cross-examination when the result of introducing new matters would be
confusion, complication, or protraction of the case.
Id. § 1885.
The exercise of the court's discretion necessarily operates not as a
hard and fast rule, but according to the actual development of the case.
Id. § 1886.
HN5The
tradition in the federal courts has been to limit the scope of redirect
examination to the subject matter brought out on cross-examination.
[**18]
See, e.g.,
United States v. Morris, 485 F.2d 1385, 1387 (5th Cir. 1973);
Hale, 435 F.2d at 749-50. Ideally, no new material should be
presented on redirect, because litigants will in theory have presented
all pertinent issues during the direct examination.
Id. In
reality, however, new information may come out on redirect, when the
trial court, in its discretion and in the interest of justice,
determines that the information is relevant and admissible.
In the case before us, by reason of the district court's policy
forbidding recross-examination, new information elicited on redirect
examination was not subjected to recross-examination by defense counsel.
HN6When
material new matters are brought out on redirect examination, the
Confrontation Clause of the Sixth Amendment mandates that the opposing
party be given the right of recross-examination on those new matters.
Hale, 435 F.2d at 752 n.22.
The district court erred in imposing its blanket prohibition on
recross-examination. It is well settled that if a new subject is raised
in redirect examination, the district court must allow the new matter to
be subject to recross-examination.
[**19]
Where new evidence is opened up on redirect examination, the opposing
party must be given the right of cross-examination on the new matter,
but the privilege of recross-examination as to matters not covered on
redirect examination lies within the trial court's discretion.
United States v. Stoehr, 196 F.2d 276, 280 (3d Cir.),
cert. denied,
344 U.S. 826, 97 L. Ed. 643 , 73 S. Ct. 28 (1952).
HN7Recross is
to redirect as cross-examination is to direct. To allow redirect
examination on new material but deny recross on the same material is to
violate both the Confrontation Clause and fundamental principles of
fairness. It is well established that the Sixth Amendment Confrontation
Clause encompasses the fundamental right of cross-examination.
See,
e.g.,
Smith v. Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956 , 88 S.
Ct. 748 (1968);
Pointer v. Texas, 380 U.S. 400, 404, 13 L. Ed. 2d 923 , 85 S. Ct.
1065 (1965); [*1376]
Douglas v. Alabama, 380 U.S. 415, 418, 13 L. Ed. 2d 934 , 85 S.
Ct. 1074 (1965).
HN8Cross-examination
is the principal means by which the trustworthiness of a witness is
tested.
Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347 , 94 S. Ct.
1105 (1974). So essential is cross-examination to this purpose that
the absence of proper confrontation
[**20] "calls
into question the ultimate integrity of the fact-finding process."
Ohio v. Roberts, 448 U.S. 56, 64, 65 L. Ed. 2d 597 , 100 S. Ct.
2531 (1980). See also
United States v. Segal, 534 F.2d 578, 582 (3d Cir. 1976) ("If
a matter has been raised on direct examination, generally
cross-examination must be permitted.").
The principles underlying the right of cross-examination apply with
equal strength to recross-examination when new matter is brought out on
redirect. "Where, as here, new matter is brought out on redirect
examination, the defendant's first opportunity to test the truthfulness,
accuracy, and completeness of that testimony is on recross examination.
To deny recross-examination on matter first drawn out on redirect is to
deny the defendant the right of any cross-examination as to that new
matter. The prejudice of the denial cannot be doubted."
United States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979)
(citations omitted).
The reversible error in this case was the district court's absolute ban
on recross-examination, an error which the court itself eventually
recognized and ameliorated before testimony was completed. Defense
counsel were given insufficient
[**21] notice
that strenuous objections should be made to any new matter brought out
on redirect, and had no opportunity to cross examine Fino regarding that
new matter. The Sixth Amendment guarantees the opportunity for effective
cross-examination.
Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15 , 106 S.
Ct. 292 (1985). This opportunity was denied.
HN9The denial
of cross-examination upon a proper subject for cross-examination is a
ground for reversal if the denial appears to have been harmful.
United States v. Honneus, 508 F.2d 566, 572 (1st Cir. 1974),
cert. denied,
421 U.S. 948, 44 L. Ed. 2d 101 , 95 S. Ct. 1677 (1975). Whether the
denial appears to have been harmful depends on the importance of the
witness' testimony, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination
otherwise permitted, and the overall strength of the prosecution's case.
Delaware v. Van Arsdall, 475 U.S. 673, 684, 89 L. Ed. 2d 674 ,
106 S. Ct. 1431 (1986). "The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully
realized, a reviewing court might
[**22]
nonetheless say that the error was harmless beyond a reasonable doubt."
Id. These principles apply equally to recross-examination.
HN10In order
to avoid reversal, therefore, the government must show that the
violation of defendants' confrontation rights was harmless beyond
reasonable doubt.
See
Van Arsdall, 475 U.S. at 681. The government has failed to
meet its burden in this case. Ronald Fino was a key witness for the
prosecution, clean cut, college educated, and far more difficult to
impeach than any other witnesses for the prosecution. It was important
to the defense to neutralize Fino's testimony, if at all possible, on
recross-examination. This point was stressed before the district court,
but to no avail. Fino was the more credible of the two main witnesses
and, if believed, not only damaged Riggi directly but provided
corroboration for Hyman and thereby enhanced his
HN11credibility.
The prejudice to the defendant need not be "outcome determinative" in
order to state a violation of the Confrontation Clause.
Id. at 680. In this case it is clear that the absolute
restriction on Fino's recross-examination could have dealt
[**23] a
devastating blow to the defense. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Judge Nygaard asserts, dissent at , (J. Nygaard typescript op. at
1.) that Riggi's affiliation with organized crime was clear from Fino's
testimony on direct examination. That testimony established that Riggi
held a high position in the labor union because of his ties to organized
crime, Fino's father was acting boss of the Buffalo crime family, and
Fino sought Riggi's support so Fino could be vice-president/regional
manager of the Laborer's International Union. But Mafia connections and
a high position in a labor union do not a crime boss make. Fino himself
had extensive Mafia connections and an influential union position, but
was not an organized crime figure, as the government clearly
established. Riggi's position was not definitely established until Fino
made it explicit.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*1377] The
government argues that defendants failed to preserve their claims for
appeal because they made no offer of proof in the face of the district
court's absolute ruling. Under the circumstances of
[**24] this
case, we can only conclude that defense counsel were reasonable in
considering it futile, and indeed possibly harmful to their case, to
make repeated offers of proof despite the district court's clear and
unequivocal policy against permitting recross-examination. A tactical
decision not to risk alienating the trial court and jury by repeatedly
challenging the court's policy in the face of the district court's
blanket rule did not constitute waiver in this case.
See
Brookhart v. Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314 , 86 S. Ct.
1245 (1966). If recross-examination is denied improperly, it is the
government's burden to establish harmlessness, even in the absence of an
offer of proof.
See
Honneus, 508 F.2d at 572.
Furthermore, the government's position that defendants had to make an
offer of proof on each occasion that the right to recross was denied
does not accord with the reality of courtroom dynamics. To require
repeated offers of proof, aside from insisting upon a futile act in the
face of the district court's ruling, would require counsel to risk
alienating the district judge and, most important of all, risk casting
the defendants in a combative and adverse light before
[**25] the
jury. As appellate judges, we must be mindful of the optics of our
ruling in a trial court setting. Although defense counsel made no
proffer as to exactly what testimony would be elicited on recross, this
did not vitiate defendants' right to conduct recross-examination. The
right having been erroneously denied, the burden is upon the government
to establish that the denial was harmless beyond a reasonable doubt.
Defendants need not show that the recross-examination, if allowed, would
necessarily have brought out facts tending to discredit the witness.
Van Arsdall, 475 U.S. at 679-680.
Riggi's acquittal on the RICO charges cannot be said to have rendered
the error harmless. There could be many reasons for a RICO acquittal
consistent with an acceptance of Riggi as organized crime boss. The jury
may have believed Riggi to be who the government said he was. If he were
thought to be what the indictment alleged, and what Fino and Hyman
claimed, the prejudice to Riggi on all counts cannot be reasonably
denied. Indeed, if the jury believed the testimony of Fino and Hyman, a
guilty verdict was almost, as a practical matter, a foregone conclusion.
n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Judge Nygaard asserts, dissent,
infra at , (J. Nygaard
typescript op. at 6.) that the testimony regarding Riggi's position as
boss of the
DeCavalcante crime family was
immaterial to the offenses for which he and Timpani were convicted. To
the contrary, Riggi's position was clearly material to the Hobbs Act
charges that the defendants affected commerce by obtaining property in
the form of earnings and services, with consent, but which consent was
induced by the wrongful use of threatened force and violence and fear of
economic harm.
See
18 U.S.C. § 1951. The jury's perception of the defendant's ability
to intimidate and extort would clearly be affected by evidence of
Riggi's position within organized crime. The testimony was material to
the Taft-Hartley Act charges that Riggi did request, demand, receive and
accept money and other things of value under circumstances where Riggi
was a union officer in an industry affecting commerce, and the money was
paid and delivered with intent to influence Riggi with respect to his
actions, decisions and duties as an officer of a labor union.
See
29 U.S.C. § 186. Again, the jury would be reasonably expected to
perceive that Riggi's ability to extort money using his position as a
union officer was enhanced if he was "acting boss." Riggi's position in
organized crime directly related to his sphere and degree of influence,
and cannot be said to be immaterial to these offenses.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**26]
Timpani's close association with Riggi was clearly established by the
testimony regarding the Crosby extortion. Impeachment
[*1378] of
witnesses against Riggi would unquestionably have affected the jury's
impression of Timpani. Under the circumstances of this case, Timpani had
a right to recross-examine witnesses against his close associate, Riggi.
See 3A John H. Wigmore,
Evidence § 911 (James H. Chadbourn
rev. ed. 1970). Recross by Timpani was prohibited under the blanket
ruling of the district court. If recross had been allowed and Fino been
impeached, the jury might have rejected Fino's testimony and, if they
had, viewed both Riggi and Timpani differently.
IV.
New information was introduced on redirect examination which the
district court did not allow defendants to explore on
recross-examination. Imposing this restriction was inappropriate because
it was contrary to precedent, violated defendants' Sixth Amendment
confrontation rights and operated contrary to the traditional
application of the Federal Rules of Evidence. The ruling by the district
court barring recross when new matter was elicited on redirect
examination limited defendants' ability to present a defense. We will
[**27]
reverse the judgments of conviction and remand for a new trial.
DISSENTBY: NYGAARD
DISSENT:
NYGAARD,
Circuit Judge, dissenting.
I dissent because the restriction of recross examination comports with
the Confrontation Clause of the Sixth Amendment. The most "damaging"
evidence from Ronald Fino's testimony on redirect examination was not
new, so the district court had discretion to prohibit recross. And even
if the court erred by imposing the prohibition, the error was harmless
beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967);
Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed.
2d 674 (1986).
Where new evidence is raised on redirect examination, the trial court
must give the opposing party an opportunity to cross examine on the new
matter.
United States v. Stoehr, 196 F.2d 276, 280 (3d Cir. 1952).
Otherwise the privilege of recross examination lies within the sound
discretion of the court.
196 F.2d at 280. Riggi and Timpani argue that Fino's redirect raised
several new matters. Of these, the most "damaging" is the testimony that
Riggi was the "boss or the acting boss of
[**28] the
DeCavalcante family." n1 App. 1006.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Fino also testified on redirect that he was "suffering" because of
his cooperation with the government. As the court's opinion notes, this
matter is not as important as Fino's testimony concerning Riggi's
status. Prohibiting recross on this matter is harmless error.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
For all practical purposes, this testimony is not a new matter. The
issue of Riggi's affiliation with organized crime had been raised in the
direct examinations of both Fino and Jesse Hyman. The overwhelming
inference to be drawn from Fino's direct testimony is that: Riggi was a
prominent mobster with connections to the New York, Buffalo, and
Cleveland mafia organizations.
Discussions of the mob and Riggi's role and influence in the mafia
permeated Fino's direct examination. For example, in describing the
manner in which mafia members introduced others, Fino testified on
direct:
Q. How did Sam Pieri introduce John M. Riggi to you?
A. He told John Riggi that my father was a friend of theirs, or a friend
of ours,
[**29] and
that I was his son, a relative of a friend.
Q. What did that mean?
A. That meant that my father was a made man. It was how
they
would talk to each other, introduce people, made people, or --
App. 901 (emphasis added). Fino testified earlier that Sam Pieri was a
capo in the Buffalo mob and that his father was "a soldier, became a
capo, and eventually the acting boss of the Buffalo family." App. 900,
870.
Fino also testified that Riggi was the "president for the Northern New
Jersey Mason Tenders" and that he "was [the business manager] for Local
394." App. 883, 886. When asked how persons obtain
[*1379]
such positions, Fino testified, "Usually through who they knew,
organized crime people. . . . They would decide who became members of
the union." App. 890.
In a crucial exchange, Fino directly implicated Riggi as a organized
crime figure. Fino testified:
Q. What was the purpose of your meeting with John Riggi?
A. Joseph Todaro, Jr. wanted me to see John Riggi to get his support for
me because the Buffalo family wanted me to be the next vice
president-regional manager.
Q. The Buffalo family wanted you to take the position of Mike Lorello as
vice president-regional manager?
[**30]
A. That is correct, yes.
Q. And what was the purpose of meeting with John Riggi for that?
A.
To gain his support and to let him know of others that
supported me.
* * *
Q. What was discussed?
A. I discussed that, Joseph Todaro wanted me to see you for your
[Riggi's] support, and that Chicago, the family in Chicago was
supporting me, and Arthur Coia in New England was supporting me and
family up there, and then I also had support of Cleveland and Buffalo,
Buffalo supporting me.
Q. When you say, for instance, the support of Cleveland and Buffalo,
what support were you referring to?
A.
Organized crime support. The families.
Q. And what was Joseph Todaro, Jr.'s position at that time?
A. He was the underboss in the Buffalo family.
Q. What did John Riggi have to say about that?
A. Well,
he told me he would support me, but that he went on to
express that those areas didn't have any say-so on what takes place in
New York and New Jersey, that that's controlled by the families over
here, and that Cleveland and those families already have to answer down
here anyway. . . .
He told me that "even though people, those guys look at me" -- I don't
know if these were
[**31] the
exact words, words to this effect, "even though those people look at me
as a
boss, and I have to answer, too," and he made the gesture
over to New York City and winched his chin a little bit.
* * *
Q. What did it [motion to chin] mean?
A. That was a motion that was given when we were talking about a
powerful Mafia figure in the Genovese family.
App. 915-18 (emphasis added and quotation marks added for clarity). This
testimony shows that Riggi is a mob boss, that he "supports" Fino's bid
for a new union position, and that even he has to answer to the New York
Mafia. True, Fino did not say this as succinctly or plainly as he did on
redirect, but he did say it.
The district court did not make its "no-recross" policy clear to counsel
until after Fino's redirect, but this does not change the fact that
Riggi had a chance to cross examine on the issue. Although Fino's
testimony clearly implicated Riggi as a mobster, the defense chose not
to squarely confront Fino on the issue. Instead they chose to impeach
Fino by trying to show bias. The only foray into Riggi's character or
status was this question, "And do you remember commenting that my client
was a quiet and humble man?"
[**32] Fino
answered, "Yes, that's correct, I remember saying that. He is." App.
967. The Confrontation Clause is not violated when defense counsel does
not take, whether by design or neglect, an opportunity to cross examine
on points he considered prejudicial to his client.
See
United States v. Howard, 751 F.2d 336, 338 (10th Cir. 1984)
(no violation of confrontation right when defendant declined for
tactical reasons to cross examine).
Fino's testimony on redirect was not to raise a new matter, but
ostensibly to clarify the potential contradiction raised on cross
examination.
[*1380] Q.
Do you recall on cross-examination you said that you had described John
M. Riggi as a quiet and humble man? Do you recall those words?
A. Yes, I do.
Q. In fact, during the time when you knew John M. Riggi, were you aware
of John M. Riggi's position in organized crime?
A. Yes, I was.
App. 1005. The testimony was elicited to rebut defendants' attempt to
impeach what was already said and to prevent jury confusion.
Aside from Fino, Hyman also testified to Riggi's status in organized
crime. He testified on direct, "Sam
DeCavalcante was the boss of the
[crime] family and that John Riggi was
[**33] his
underboss." App. 1136. Thus Riggi and Timpani had at least two
opportunities to cross examine assertions that Riggi was the "acting
boss of the
DeCavalcante family." The
Confrontation Clause of the Sixth Amendment guarantees an "
opportunity
for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish."
Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15 , 106 S.
Ct. 292 (1985) (per curiam) (emphasis in original). The district
court did not abuse its discretion when it refused to give the
defendants another opportunity to challenge the witnesses.
See
Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987)
(no violation of confrontation right when defense counsel was afforded
more than an adequate opportunity to cross examine),
modified on
other grounds
830 F.2d 968.
But even if the district court erred, it was harmless because Fino's
testimony on redirect was immaterial to the offenses for which Riggi and
Timpani were convicted, was corroborated by Hyman's testimony, and was
cumulative. In
Delaware v. Van Arsdall, the Court said that upon
finding error a reviewing
[**34] court
must consider "whether, assuming that the damaging potential of the
cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable doubt."
106 S. Ct. at 1438.
The Court then set forth several factors to consider: "These factors
include the importance of the witness' testimony in the prosecution's
case, whether the testimony was
cumulative, the presence or
absence of evidence
corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution's case."
106 S. Ct. at 1438 (emphasis added). Because recross is to redirect
as cross is to direct, these factors apply equally to recross
examination.
First, Fino was an important witness for the prosecution. But his
testimony on redirect is immaterial to whether Riggi or Timpani violated
the Hobbs or Taft-Hartley Acts. n2 Although that testimony was material,
in fact crucial, to the RICO charges, both Riggi and Timpani were
acquitted of those charges. Under the Hobbs Act, the "ability to
intimidate"
[**35] is not
an element or a consideration as the majority argues. Maj. typescript
p.21, fn.3. The Hobbs Act makes a threat a crime in and of itself
regardless of whether it was viable. Moreover, the Taft-Hartley Act says
absolutely nothing about violence; the illegality is requesting the
money. Riggi and Timpani made threats to various people. That is clear.
This testimony was immaterial. They violated the Taft-Hartley Act, and
were properly convicted of it. In other
[*1381]
words, the testimony does not go to prove any element of the charges of
which Riggi and Timpani were found guilty. It simply was not a "material
point."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Riggi was convicted for violating the Hobbs Act,
18 U.S.C. § 1951, and Taft-Hartley Act,